TMI Blog2002 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... rice of the printers and the price of the drives in excess of one number has to be reduced from the gross sale price of the computer to arrive at the assessable value of the computers. 2.They were filling price lists both in part I and part II from time to time. Part II price lists were basically related to the purchase order/contracts entered into with customers for the supply of various items/computer systems. In the price lists the assessee were not showing the details regarding the peripheral items such as printers, drives, etc. The Assistant Commissioner order was that the price lists should include the value of all the additional peripheral items in the assessable value of the computer system supplied. The Collector (Appeals) vide his Order-in-Appeal No 327/885, dt. 30-11-88 set aside the order of the Assistant Commissioner and remanded the case for de novo consideration. 3.The Assistant Commissioner of Central Excise, Mysore-I in his de novo Order No. 51/89, dt. 28-4-89/16-6-89 held that - (a) If there was a single contract for supply of computer including peripherals other hardware and software, the total value of the computer including that of hardware, software and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter Note 5(a) and 5(b) of the CETA, 1985 read with the description of Tariff item 8471. The Tribunal also observed that a view will have to be taken whether the goods cleared can be considered to be one entity for the purpose of levy in terms of Chapter Note 5(b) and 5(a); With respect to Modvat credit the Tribunal ruled that in case it is held by the Adjudicating Authority that the value of the peripherals etc., would be required to be included for arriving at the assessable value of the computer systems cleared as one entity then the assessees would be entitled to the Modvat credit in respect of the bought out items subject to the satisfaction of other requirements of law and remanded the case for de novo examination to the Original Authority. 5.Duty assessments for the period April, 1988 to March, 1991 were finalised vide OIO No. 50/96, dt. 27-2-96/29-3-96. As a result of finalisation of provisional assessment an amount of Rs. 4,36,19,004/- was demanded. Against the above cited decision the assessee filed a writ petition before the Hon'ble High Court of Karnataka in Writ Petition No. 29909/96 Hon'ble High Court disposed of their writ petition granting stay of recovery of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the prices are mentioned separately for each unit in the purchase order/contract and whether the invoices are raised separately or not and whether the assessee have failed to follow certain procedures in this regard or not. (iii) No Modvat credit has been allowed to the assessee though it is admissible as they have not produced the duty paid documents with the details of credit admissible which is a pre-condition to allow Modvat credit based on the Tribunal order. 7.Aggrieved by this order, the assessee preferred an appeal before Commissioner (Appeals), who vide his OIA No. 1111/99, dt. 23-10-99 has set aside the OIO of Assistant Commissioner, Mysore-1 and allowed the assessee's appeal holding that the value of bought out peripherals is not includible in the assessable value of computers. Reliance was place by him on the decisions of Hon'ble Supreme Court in the case of (i) ORG Systems v. CCE, 1998 (102) E.L.T. 3 (S.C.) wherein the Supreme Court considered their earlier judgment in the case of M/s. PSI Data Systems [1997 (89) E.L.T. 3 (S.C.)]. (ii) Appellants own Order No. 3274 to 3282/97, dt. 10-12-97 [1998 (99) E.L.T. 343 (Tribunal)]. (iii) West Regional Bench i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reveals that the order is placed for one Computer System consisting of various hardware including more than one item. The entire system has been referred to as one unit and in terms of Chapter Notes 5(a) 5(b) of Chapter 84 they are classifiable as one system only. (e) CEGAT, Mumbai in the case of M/s. CMS Computers (P) Ltd. v. CCE, Mumbai reported in 1999 (108) E.L.T. 525 (Tribunal) = 1998 (29) R.L.T. 915 (T) has held that printers and monitors are not parts of computer but only accessories. However the department has not accepted the said decision and a Civil Appeal has been filed before the Supreme Court [2000 (118) E.L.T. A156.] against the said CEGAT Order No. C-II/2727/98 WZB dt. 24-11-98 (Ministry's F. No. 390/15/99-JC dt. 8-4-99). (f) In the assessee's own case the department has filed a Civil Appeal before Hon'ble Supreme Court against CEGAT, Chennai's F.O. No. 3274 to 3282/97, dt. 10-12-97 [1998 (99) E.L.T. 343 (Tribunal)] (Misc. Order No. 416 to 424/99, dt. 9-4-99 vide C. No. IV/3/344/89 (Appeals), dt. 11-6-99). 9.We have heard both sides, considered the matter and find - (a) that civil appeal has been filed against the decision in the case of M/s. CMS Compute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ratio of the decision of the Hon'ble Supreme Court in the case of PSI Data Systems Ltd. supports the view taken by the lower appellate authority." and in that view of the matter, the present items will also have to be viewed and understood not as parts but accessories. (b) The Commissioner (Appeals), in this case has correctly relied upon the decision as mentioned in his order, to come a conclusion that the impugned items herein were peripherals and accessories and not essential parts. The findings on Chapter Note 5 of Chapter 84 of CETA, 1985, cannot be assailed by any interpretation, since this note was not applicable during the disputed period. We find, therfore, no infirmity in the findings arrived at the learned Commissioner (Appeals) on peripherals, bought out and supplied along with computers on common purchase order/contracts to constituent an integral part of the computer system under Excise Law to merit duty under CETA, 1985. (c) We find that the present appeal is, therefore, devoid of any grounds on merits as regards constituent an integral part of computer peripherals (accessories thereon). Thus the appeal therefore cannot survive. 10.In view of our finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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