TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 945
X X X X Extracts X X X X
X X X X Extracts X X X X
..../98, it was noticed that the appellant was using brand name of M/s. Allen Bradley (I) Ltd., Calcutta. Therefore Show Cause-cum-Demand Notice dated 30-3-01 was issued seeking to deny SSI exemption, The adjudicating authority vide his Order-in-Original No. 54/08-09, dated 23-3-09 held that activity of loading of software does not amount to manufacture in terms of Central Excise Act, 1944 and dutiability of said goods does not arise. He has relied upon the case of Acer India Ltd., reported in 2004 (172) E.L.T. 289 (S.C.) and dropped the proceedings. 2. Being aggrieved by the order of adjudicating authority, Revenue filed the present EA2 (i.e. appeal) on the ground that the Range Officer vide letter dated 15-6-2009 has confirmed that the respo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bad reported in 2006 (193) E.L.T. 96 (Tri.-Mumbai). The next contention is that demand is time-barred as clearance figures were submitted in 1998 and SCN was issued on 30-3-2001 i.e. after over two years and relied upon various Tribunal judgments. 4. A personal hearing held on 13-7-2010 and was attended by counsel Ms, Padmavati Patil, Ms. Vaishali Raut both Advocates and employee of the respondent Shri P.D. Rao. During the hearing, they reiterated the points mentioned in their cross-objection. The respondents have filed a written submission dated 26-7-2010 stating that they were buying blank PLCs having the basic operating systems inbuilt from M/s. Alan Bradley and using these as an input for the control panel. The pertinent software requi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia Ltd. (supra), which is primarily relating to valuation of goods, namely, inclusion of cost of software for determination of payment of duty of computers. The relevant paragraph of the judgment reads as under : '79. Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified, differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial parlance as also under the statute. Although a computer may not be capable of effect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oading of software on the computer before clearing from the factory cannot said to have transformed into a hardware so as to make it subject to levy of excise duty along the computer. The lower adjudicating authority has correctly placed reliance upon this decision while deciding the case. 6. The Revenue has placed reliance upon the decision in the case of Anjaleem Enterprises Pvt. Ltd. reported in 2006 (194) E.L.T. 129 (S.C.), where the Hon'ble Supreme Court has held STD-PCO non-functional without EPROM (Erasable Programmable Read Only Memory), for which the appellant were claiming exemption. It was held by the Hon'ble Supreme Court that EPROM was an integral/essential component for making STD-PCO operational. The reliance placed by the a....