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TMI Blog1998 (3) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... each computer supplied three separate invoices for the CPUs, peripherals and the software. After scrutiny of the records, show cause notice dated 3-7-1987 was issued to the appellant alleging short payment of duty of Rs. 20,67,146.41. After the appellant replied to the notice resisting the allegation and appeared for personal hearing, Collector of Central Excise, Aurangabad passed Order-in-Original No. Collr/28/88, dated 17-10-1988 demanding duty of the amount proposed in the show cause notice and imposing penalty of Rs. 7,50,000/-. The appeal challenges the said order. 2. On behalf of the appellant, learned Counsel Shri Rohan Shah made submissions assailing the Collector s finding on merits as well as on the ground of limitation. On meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had not reported to the department their practice of issuing three sets of invoices while paying duty only on the CPU portion of the computer. The letter dated 10-3-1983 claimed to have been filed by the appellant intimating their invoicing procedure is not on the record of the department as brought out in the Collector s order. On merits, Shri Ali contended that the peripherals in question are integral parts of the computer. The keyboard and monitor are plugged into the CPU to form the computer. The Disk drives are fitted in the CPU. Tariff Item 33DD specifically included peripheral devices also. Collector has also referred to Notification 148/76-C.E., dated 1-5-1976 which provided for the inclusion of value of peripheral devices in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not referred to by the Managing Director, Shri K.R. Sheth when he gave his statement. The appellant had sought cross-examination of the Inspector who had received the letter in question and who was reportedly posted in Solapur itself. There is no discussion about this in the adjudication order. We are of the view that in the circumstances the letter must be accepted as genuine and the plea of limitation has force as appellant had brought it to the notice of the department the practice of issuing separate invoices for the CPU, peripherals and software and also intimated the fact that the peripherals are imported and duty paid and had claimed that no excise duty was attracted as they had not manufactured the same. Their claim may or may n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 980 the procedure prescribed under Rule 56A was prescribed for availing of such exemption. It was open to the party to avail the benefit of exemption which they failed to do. The Collector has noted that a good deal of buyers had purchased the peripherals along with the computers. This would indicate that the peripherals were not supplied in all the cases. It has been contended on behalf of the appellant that peripherals were supplied only against specific orders for them by their customers and that in fact they had not supplied the peripherals to some of the buyers of CPUs. 5. As regards the Collector s finding based on the Tariff Entry 33DD we find that the language of the said Entry viz. computers (including Central Processing Units an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty or countervailing duty, as the case may be, already paid on such peripheral devices. This is as it should be, as there cannot be such exemption where the value of computers does not include the value of peripherals. The consequence of non-inclusion of the cost of peripherals cannot be demand of duty on the computers by including in its value [the value] of peripherals. If, however, such inclusion is decided, the benefit of exemption under the said Notification would be available. Admittedly, appellant had not claimed the benefit of the exemption at the time of clearance of the computers and had also not followed the procedure prescribed under Chapter X of Central Excise Rules. These were not done obviously because the computers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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