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TMI Blog2017 (11) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... E/40974/2013 - Final Order No.42626-42635/2017 - Dated:- 26-10-2017 - Smt. Archana Wadhwa, Judicial Member And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Muthuvenkataraman, Advocate for the Appellant Shri A. Cletus, ADC (AR) for the Respondents ORDER Per: Archana Wadhwa, All the appeals including the Revenue s appeal are being disposed of by a common order as the issue involved is same. 2. After hearing both sides, we find that the appellants are engaged in the manufacture of Automated Teller Machines (ATM). During the Course of arguments, it has come to our notice that the appellants have imported ATM machines after payment of SAD liable thereon and also imported customized software from their own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines stands decided against them by the Larger Bench decision of the Tribunal in the case of Bhagyanagar Metals Ltd. Vs. CCE, Hyderabad - 2016 (333) ELT 395 (Tri.-LB), but submits that it is not a case of imposition of penalty in as much as the matter involved interpretation of legal provisions of law. As such, he submitted that the Hon ble Supreme Court in the case of CCE, Vapi Vs. Kolety Gum Industries - 2016 (335) ELT 581 (SC), has held that when there are conflicting judgments of the higher courts available during the relevant period thus necessitating the reference of the matter to the Larger Bench, no malafide can be attributed to the assesse. He also draws our attention to various correspondences exchanged between the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority and as such they should not be permitted to raise the same at the appeal stage. In his rejoinder, the Ld. Advocate submits that the issue of availability of Cenvat credit was actually raised before the Commissioner and in fact stands dealt by him by observing that though the assesse was entitled to the Cenvat credit but the same cannot be allowed at the adjudication stage, in as much as the same stands hit by the restriction put forth in the 3rd proviso to Rule 4(1) of CCR, 2004. 8. As regards the availability of the Cenvat credit, we note that the appellants were not claiming it at the original stage in as much as they were not including the value of the software in the assessable value of ATM. The restriction pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct, such duty of excise is to be neutralized to that extent. Without expressing any opinion on the said issue and appreciating that the matter already stands remanded, we expect the commissioner to deal with the said issue also in denovo proceedings. 10. Further the appellants have also taken a plea that the customized software is exempted vide notification No.6/08 CX dated 01.03.2008. The plea of the appellants would also be examined by the Commissioner in the denovo proceedings. We make it clear that we are not expressing any opinion on the said issue. It is made clear that the adjudicating authority would also take declaration of law in the case of Industrial Cables (supra), wherein it was observed that customized software hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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