2018 (1) TMI 1315 - AT - Central Excise

Valuation - whether certain software separately supplied, to be loaded in the computer of the customer, who procured the electronic circuit and safety equipment from the appellants? - Held that - the lower authorities have inter-mixed the embedded software with the customized software supplied latter for monitoring and data retrieval from the device - it is clear that a devise should suffer Central Excise duty along with essential operating software which is part and parcel of the same. However, the software which is supplied separately for loading in the computer of the client linked to the devise for retrieval and monitoring of data cannot be considered as part and parcel of he said access control device. Appeal allowed.

Summary

Issues:
- Change of cause-title in the appeal
- Classification of software separately supplied for monitoring data from safety equipment
- Interpretation of Chapter 85 Note 6 regarding software supplied separately
- Applicability of previous case laws on the present dispute
- Distinction between embedded software and customized software for monitoring data

Change of Cause-Title:
The appellant filed a miscellaneous application to change the cause-title to M/s. Siemens Ltd. The application was allowed, and the appeal was taken up for hearing and disposal.

Classification of Software:
The appeal concerned the classification of software separately supplied by the appellant for monitoring data from safety equipment. The appellant argued that the software was not to be categorized with the equipment but as software classifiable under 8523/8524, which they had paid Central Excise duty on.

Interpretation of Chapter 85 Note 6:
The Revenue relied on Chapter 85 Note 6, which was deleted in 2007, to argue that software supplied in a CD should form part of the tax liability of the apparatus itself. However, the Tribunal noted that the software in question was not supplied along with the device, thus the Note did not apply to the dispute.

Applicability of Previous Case Laws:
The Revenue cited a previous case, Anjaleem Enterprises Pvt. Ltd. Vs. Commissioner, which dealt with embedded firmware, not applicable to the present dispute. The appellant referenced CCE, Pondicherry Vs. Acer India Ltd., where the Apex Court held that operational software does not form an essential part of hardware, supporting their argument.

Distinction Between Embedded and Customized Software:
The Tribunal distinguished between embedded software, which is part of the device and subject to duty, and customized software supplied separately for monitoring and data retrieval. They concluded that while the device should incur Central Excise duty along with essential operating software, the software supplied separately for monitoring data cannot be considered part of the access control device.

In conclusion, the impugned order was set aside, and the appeal was allowed based on the analysis and discussions presented.