9911796707
TMI Blog2007 (10) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been taken into account. 2. Heard both sides on the application. 3. The applicant submits that the order requires rectification for the following reasons : (a) The fact that basic software had already been included in the value of the Consoles manufactured and sold and that duty of Excise has been paid thereon already by the assessee has been ignored by the Adjudicating Officer as well as by the Tribunal. The Tribunal and the adjudicating authority have proceeded on the erroneous assumption that no duty had been paid by the assessee on basic software forming part of the consoles. (b) Although the show cause notice did not distinguish between basic software and operational/optional software, the Commissioner has accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable and inapplicable also in view of there being no dispute on classification and also on the software not being manufactured by the assessee and there was no issue of exemption under Notification No. 84/89, dt. 1-3-1999. 4. It was submitted that the duty on the basic software in the first show cause notice dated 26-11-96 was only Rs. 2,77,902/-, which was already paid and ignoring the same the duty demand of Rs. 21,27,128/- has been wrongly raised. 5. The applicant enclosed show cause notice-wise details and break-up for all the 20 Notices covered by the second adjudication order and a summary thereof is enclosed now as Annexure 1 for easy reference to point out that for the entire period from Sept. 96 to Mar. 01 in all the 13 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charging duty on the computer/equipment which includes the value of such basic software. 9. Therefore, on merits, the decision of the Commissioner in holding that the value of the basic software which is reportedly a part of EPROM (Erasable Programmable Read Only Memory) is includible in demanding duty on the equipment is legal and proper. In the light of these findings/decision the contention becomes irrelevant. If a bought out item satisfy the above criteria naturally its value requires to be included for the purpose of payment of duty. After all, any raw material used in the manufacture of a product could be a bought out item. Once it becomes part of the product the identity has to be forgotten. For example, the value of tyres fitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We do not find any error apparent on record. 6.6 However, we notice that one of the grounds taken before us is that the duty has been again confirmed by the commissioner on value on which the appellant has already paid the duty. Further the applicant also submits that the break up figures relating application software, operating soft ware, basic soft-ware furnished by them related only in respect of one show cause notice dated 3-4-2000. This break up covered only a total value of Rs. 1,34,44,999/- in one show cause notice as against the over all total value of Rs. 2,09,54,735/- in twenty show cause notices. 7. We do not find any infirmity apparent on record on our decision on merits. Having said that, in the interest of justice, we dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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