TaxTMI 
TaxTMI 
1994 (8) TMI 108
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....the manufacture and sale of inter alia Computers and Electronic Telephone exchange. These goods are subjected to excise duty under T.I. 33D or under T.I. 33DD of the erstwhile Excise Tariff at the relevant time with reference to value thereof. The appellants sold their products to buyers at a price negotiated through a contract. The contract/purchase orders reveal that the price settled for sale are inclusive of charges such as technical service charges, annual maintenance charges, software charges and certain bought out items. According to Department, these charges would become part of the assessable value of the excisable goods but the appellants filed the price list declaring the price of the goods without disclosing these charges therei....
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.... Auto Control (P) Ltd. v. Collector of Central Excise [1993 (63) E.L.T. 156]. Smt. C.G. Lal arguing for the Revenue submitted that in principle installation and commissioning charges are not includible in the assessable value but in the absence of bifurcated figures the same is to be included in the assessable value relying upon the order of the Tribunal as per Order No. 168/94-A, dated 6-7-1994 in the case of O.R.G. Systems reported in 1994 (73) E.L.T.450 (Tri.). 3.2 On hearing both sides on this issue, we find now it is settled position that installation and commissioning charges and site maintenance charges are post manufacturing expenses and this activity has no nexus with the manufacturing and marketability and as such they are....
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....uded. It was contended on behalf of the revenue that Software is an essential part of the Computer as it was held in the case of Sunray Computers (supra), P.S.I. Data Systems [1989 (39) E.L.T. 692] and in the case of Wipro Information Technology Ltd. [1989 (39) E.L.T. 113] and issue with reference to bought out items has been decided in a series of cases in favour of the revenue holding that value of bought out items is to be included in the assessable value. She referred to the following decisions in support of her contention :- (1) Narne Tulaman Manufacturers Pvt. Ltd. v. Collector of Central Excise [1988 (38) E.L.T. 566 (SC)]. (2) Collector of Central Excise, Bangalore v. Wipro Information Technology Ltd. [1989 (39) E.L.T. 113 (Tri....
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....d parcel of the computer. If there is a single contract for the supply of computer, including software, the total value of the computer, including that of the software, would have to be assessed to duty, irrespective of the fact whether the software part is supplied along with the hardware or in a separate lot and irrespective of the fact whether a single invoice is made for both hardware and software or a separate invoice is made for the software." 3.5 Accordingly, we hold that Department was right in including the value of the software in the assessable value of the computer. 4. As regards remaining bought out items on going through the aforesaid decisions, we are of the view that the value of such bought out items is incl....
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....s is to be excluded. The appellants may make use of this opportunity to adduce evidence in support of their contention to get relief. 5. Next, it was contended by Shri Ashok Sagar that though specific plea has been taken by the appellants in respect of bought out items mentioned in Annexure-A to the Show Cause Notice at serial Nos. 9 to 13 and 21 to 25 in Appeal No. E/2595/93-A on the ground that the appellants were not required to pay duty on such bought out items since items covered under serial Nos. 9 to 13 have already suffered duty with the supported invoices and gate passes and similarly items covered under serial numbers 21 to 25 have not been sold but have been stock transferred, but neither the Assistant Collector nor the C....
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....approved price list. We find that observation made in the case of Swan Mills (supra) with reference to Section 11A, was in different context and same is not applicable to the facts of this case. On the other hand, we find that the contention of the appellants on this issue is well founded since Section 11A is concerned with recovery of duty and wherein it was specified that notice has to be issued within the prescribed period as the case may be from the relevant date and relevant date has been defined in Section 11A(3)(ii). Section 11A(3)(ii)(b) is relevant and the same is reproduced as under :- " 3(ii) - "relevant date" means : (a) -------- (b) in a case where duty of excise is provisionally assessed under this Act or th....