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TMI Blog2016 (4) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... Acer Ltd. [2004 (9) TMI 106 - SUPREME COURT OF INDIA], the scope and purport of Section 3 of the Act, Section 4(1)(a) as substituted with effect from 1.7.2000 and Section 4(3)(d) defining “transaction value” came up for consideration before another Three Judges Bench of this Court. Though in the backdrop of different factual scenarios, two Coordinate Benches (Three Judges) have taken what would appear to be contrary views with regard to purport and effect and the interconnection between Section 3 and 4 ibid. Therefore, we are of the view that another Coordinate Bench should not venture into the issues raised and even attempt to express any opinion on the merits of either of the views expressed in Union of India & Ors. Vs. Bombay Tyre In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction Value makes any material departure from the deemed normal price concept of the erstwhile Section 4(1)(a) of the Act? 2. The facts in brief are as follows: The respondents-assessees are manufacturers of dissolved and compressed industrial gases and allied products. These gases are transported and supplied to the customers in tonners, cylinders, carboys, paper cones and HDPE bags, BIBs, pipeline and canisters, which may be more conveniently referred to as Containers. Some container items are provided by the assessees and in some instances the customers bring their own cylinders/containers. For providing the containers, the assessees charge the customers certain amounts under different heads. These amounts are not reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration for the sale, be the transaction value; 6. Transaction Value as defined by Section 4 (3) (d) reads as follows: (d) transaction value means the prices actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods, and the value is defined in express terms by that Section. It has long been recognized that the measure employed for assessing a tax must not be confused with the nature of the tax. ... ... ... It is apparent, therefore, that when enacting a measure to serve as a standard for assessing the levy the Legislature need not contour it along lines which spell out the character of the levy itself. Viewed from this standpoint, it is not possible to accept the contention that because the levy of excise is a levy on goods manufactured or produced the value of an excisable article must be limited to the manufacturing cost plus the manufacturing profit. We are of opinion that a broader based standard of reference may be ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable in the market separately. They are separately marketable commodities. The essentiality test or the functional test cannot be applied for the purpose of levy of Central excise inasmuch as the tax is on manufacture of goods . The Act being a fiscal legislation an attempt must be made to read the provisions thereof reasonably. Computer comes within the definition of excisable goods. So is a software. They find place in different classifications. The rate of duty payable in relation to these two different goods is also different. 69. While calculating the value of the computer the value of the hard disc, value of the firmware, the cost of the motherboard as also the costs for loading operating softwares is included. What is exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84. In other words, computers and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no Central excise duty would be leviable upon determination of the value thereof by taking the total value of the computer and software. So far as the valuation of goods in terms of transaction value thereof, as defined in Section 4(3) ( d ) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also sub-section (1) of Section 4. The expressions by reason of sale or in connection with the sale contained in the definition of transaction value refer to such goods which is exci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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