2017 (11) TMI 433

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.... 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 parent company located in UK. The said imported software is being loaded in the ATM machines cleared by them on payment of duty. The appellant was not including the cost of the customized software in the valuation of imported machineries, whereas, the value of the other ordinary software loaded in the ATM machines was being added in the assessable value of the ATM machines. 3. Revenue by entertaining a view that the value of the customized software is also required to b....

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....ng 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 appellants and the Revenue and submits that all the material particulars and facts were in the knowledge of the department and were being disclosed by the assesse, in which case, no suppression can be alleged against them, so as to invoke the penal provisions on the said issue. 5. We note that the appellants have placed a lot of correspondences before us which needs verification in the hands of the original adjudicating authority. Ld. Advocate has also placed decisions before us l....

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....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 provided under the law restricts avaliment of credit, when the assessee is working under Cenvat credit and is availing the credit in routine manner. The present claim of the assesse to avail the credit stands arisen only on account of the subsequent demand of differential duty by the Revenue. In such a scenario, there are number of decisions holding that in case of subsequent demand of duty, such credit is required to be examined and extended. Reference can be made to the Punjab ....