9911796707
TMI Blog1996 (6) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The brief facts, leading up to the filing of the application are that the applicants are manufacturers of computers and computer systems and parts and accessories thereof failing under Chapter sub-heading 8471.00 and 8473.00. They also supplied bought out items such as application and systems software, printer, plotter, monitor, etc. along with the computer. The case of the Department is that the value of peripherals and software is to be included in the assessable value of the computer systems. The Assistant Collector confirmed a demand of Rs. 7,85,18,270/- representing duty on peripherals and software which order was upheld by the Collector (Appeals) who, however, accepted the contention of the applicants that the benefit of Modvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would only be to the tune of approximately of Rs. 3.16 crores. Regarding the order in the case of Tata Unisys v. CCE, Bombay reported in 1994 (73) E.L.T. 96 wherein the Tribunal has held that the value of systems software is includible in the assessable value of computer systems, the submission of the learned Counsel is that this case has been referred to the Larger Bench vide Miscellaneous Order No. 346/95-A, dated 5-12-1995 and he submits that in such circumstances, following the practice of the Tribunal, status quo ante should be directed to be maintained and the requirement of pre-deposit should be waived and the recovery of the duty stayed pending the decision of the Larger Bench. 4. Opposing the arguments of the learned Counsel Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut expressing any prima facie view on the merits of the matter, following the practice in the Tribunal of maintaining the status quo when an identical issue has been referred to a Larger Bench, we, on this ground alone, waive the requirement of the pre-deposit of duty and stay recovery thereof till the Larger Bench decides the issue referred to it. 6. [Order per : S.K. Bhatnagar, Vice President]. - It is observed that the appellants herein have mainly contended that their supply of computer systems to the customers included not only the items manufactured by them namely the computers per se but also the bought out peripherals and the software as well. A question has arisen as to whether the excise duty payable by them was required to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why from the value of Rs. 47,26,16,823/- [Rupees Forty Seven Crore Twenty Six Lac Sixteen Thousand Eight Hundred Twenty Three Only] a deduction of Rs. 6,74,42,023/- [Rupees Six Crore Seventy Four Lac Forty Two Thousand and Twenty Three Only] has been indicated therein. The ld. Counsel has stated that this aspect should have been presented differently. The Ld. DR has also able to explain as to why the Department had taken this deduction into account if its case was that the duty was demandable on the value of the entire computer system (including peripherals and software) and the total figure represented the assessable value. The amount is very large one, and therefore, we are rather surprised that the department was not in a position to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides, even crores have remained unexplained. 10. The point as to whether the items/materials said to be purchased were sold as a part of the trading activity independent of manufacturing activity or not is a matter which depends upon appreciation of evidence. 11. In so far as valuation of Software is concenned, I feel that prima facie the ld. DR s contention has a greater force inasmuch as the Section Notes and the Chapter Notes are ex-facie meant for determining the classification and not the valuation. We have been informed that an appeal against the Tribunal s order in the case of Tata Unisys is pending before the Hon ble Supreme Court. Further the correctness of the decision in the case of Tata Unisys has also been questioned by a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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