2018 (3) TMI 103

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....zed Petrol Exhaust Gas Analyzer and Computerized Diesel Smoke Meter etc. and are registered with the Central Excise Department. On scrutiny of ER1 returns, for the period 1.12.2007 to 30.4.2008, it was noticed that the appellants were manufacturing and clearing such goods along with Data Processing Machines which are located with basic software such as Windows XP etc. Apart from the basic software loaded into the Automatic Data Processing Machine supplied along with the equipment, the appellants have also supplied customized software for various applications to be performed by the above machines. The said software was essentially for making the equipments / machinery to perform the allotted functions. The department was of the view that suc....

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....ely for loading cannot be considered as part and parcel of the machines / equipments. 4. On behalf of the department, ld. AR Shri R. Subramaniam reiterated the findings in the impugned order. 5. Heard both sides. 6. The issue involved in these appeal is whether the software falling under Tariff Heading 85.24 has to be assessed to duty along with the computerized equipment / machinery or whether it has to be assessed under Tariff Heading 85.24 separately. It is brought out from the evidence that apart from the basic software loaded into computerized garage equipment / machinery. The appellant also supplies application software for various specific application which is essential for making the equipment to perform certain specific fu....

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....the Anjaleem Enterprises Pvt. Ltd. Vs. Commissioner - 2006 (194) ELT 129 (S.C.). We note that the said case dealt with read only memory of a computer circuit which is not programmable later. In other words, they are embedded firmware. The decision in the said case has no application to the present dispute. 4.4 The appellant relied on the judgment of the Hon'ble Apex Court in the case of CCE, Pondicherry Vs. Acer India Ltd. - 2004 (172) ELT 289 (S.C.). The Hon'ble Apex Court held that even operational software does not form an essential part of the hardware. In the present case, the device cleared by the appellant containing embedded software and has suffered duty along with the device. We are dealing with a software to retrieve dat....