2019 (7) TMI 54 - AT - Central Excise

Valuation - inclusion of cost of the software in the cost of the hardware - extended period of limitation - HELD THAT - Learned advocate submits that though all the above issues were raised before Original Adjudicating Authority, he has sidelined the same by observing simplicitor that no evidence to that effect has been produced by the assessee, whereas the fact is that all these documentary evidence were placed on record - In view of the foregoing it is the prayer of the learned advocate to set aside the impugned order and remand the matter to Original Adjudicating Authority for fresh consideration. It is deemed fit to remand the matter to Commissioner - appeal allowed by way of remand.

Summary

Issues:
1. Whether the cost of software should be added to the cost of hardware for duty calculation.
2. Whether the demand raised by the Revenue against the appellant is justified.
3. Whether the appellant provided sufficient evidence to support their case before the Adjudicating Authority.

Analysis:

Issue 1:
The appellant is engaged in manufacturing Programmable Logic Control (PLC) and importing software supplied with the hardware. The Revenue contended that the cost of software should be included in the hardware's cost for duty calculation. The appellant argued that software was supplied separately under distinct invoices, indicating it is not an integral part of the hardware. The appellant referenced various court decisions to support their case, highlighting that software and hardware can be sold independently. The Tribunal acknowledged the arguments and remanded the matter to the Adjudicating Authority for a fresh review, emphasizing that all issues, including the duty calculation, should be reconsidered.

Issue 2:
The Revenue had raised a demand of approximately ?5 crores against the appellant, including interest and penalties, based on the inclusion of software cost in the hardware for duty calculation. The Adjudicating Authority confirmed this demand, citing a longer period of limitation. The appellant contended that evidence supporting their case was presented but not considered by the Adjudicating Authority. Both the appellant's advocate and the Revenue's representative agreed to set aside the impugned order and remand the matter for reevaluation by the Commissioner. The Tribunal approved this course of action, ensuring the appellant's right to present their case and leaving all issues, including the limitation aspect, open for re-adjudication.

Issue 3:
The appellant argued that despite presenting documentary evidence supporting their case before the Adjudicating Authority, it was not duly considered. The appellant's advocate highlighted that the evidence, including instances where software was not supplied with hardware or was sold separately, was on record. The Tribunal noted this contention and directed the matter to be reexamined by the Commissioner, emphasizing that the appellant should be given the opportunity to present their case fully. The Tribunal clarified that they did not delve into the merits of the contentions raised by the appellant, leaving all issues open for reevaluation.

In conclusion, the Tribunal set aside the previous order and remanded the case for fresh consideration, ensuring a fair opportunity for the appellant to present their case comprehensively. The judgment emphasized the need for a thorough review of all issues, including the duty calculation and the evidence presented by the appellant, by the Adjudicating Authority.