AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 851
X X X X Extracts X X X X
X X X X Extracts X X X X
....material processing (iii) Microwave and R. F. absorbers and (iv) EMI/EMC shielded Enclosures, falling under Central Excise Tariff heading No. 85158090, 85159000, 85437099 and 85437099 respectively. On scrutiny of records, it was noticed that the appellant had manufactured and cleared machineries such as Laser Cutting machine, Diamond Cutting machine etc. The machineries manufactured by the appellant are specialised tailor made machineries to perform specific function. The appellant have also supplied software for operating the machines. On further verification, it was found that the appellant during the period 2004-05, 2005-06 and 2006-07 had cleared the said software machines without payment of duty by claiming the exemption notification N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eriod i.e. up to 31.12.2006 along with the applicable interest. However, the demand of duty for the period from April 2004 to March 2006 was held time barred. The demand of duty on the value of clearances after 01.01.2007 is sustainable along with applicable interest under Section 11AB of the Central Excise Act, 1944. Being aggrieved by the said impugned order, the appellant filed the present appeal. 2. Shri Devashish K. Trivedi Ld. Counsel appearing on behalf of the appellant submits the software was not installed in the machines manufactured and supplied by the appellant, the software was separately declared and the same was sold separately as such under the CD. The software supplied separately is not a part and parcel of manufacture o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....01.04.2004 to 31.03.2006 as time barred, but, demand from April 2006 onwards was maintained. He submits that once the fact of the transaction has come to the notice of the Audit and the said period was held time barred, for the subsequent period it cannot be said that there is any suppression of fact. Accordingly, the demand for the subsequent period also to be time barred. He placed reliance on the following decisions:- (i) Commissioner of Central Excise, Pondicherry vs. Acer India Ltd. - 2004 (172) ELT 289 (S.C.). (II) Hewlett Packard India Sales (P) Ltd. Vs. Commissioner of Customs, Chennai - 2006 (203) ELT 477 (Tri.-Chennai). (iii) Commissioner of Customs, Mumbai vs. Hewlett Packard India Ltd. - 2006 (199) ELT....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nitially, the demand was raised for the period 2004-05 to 2006-07. However, the Ld. Commissioner (Appeals) held that the demand in the majority of period as time barred. In this regard, the Ld. Commissioner (Appeals) has given the following findings:- "12. As regard the ground of limitation argued by the appellant, I find that the present issue was raised vide Audit Report No. 80/2008-09 Dated 20.10.2008. In the said Audit Report, issued from F. No.VI/1(b)-65/1A/2008-09/AP-AIII by the Deputy Commissioner, C.Ex.(Audit), Ahmedabad-III, the date of which audit is undertaken is mentioned as 22-23-24/09/2008. The Period for which current audit is undertaken is mentioned as April, 2006 to August, 2008. Further, date of last audit is ment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m April-2004 to March-2006 is time barred. However, in the audit conducted for the succeeding period i.e. from April - 2006 to August - 2008 the present issue is raised, therefore, it cannot be said as time barred. Also as discussed at para 10 above the appellant is not eligible for the classification of the software separately under Chapter heading no. 8524 from 01.01.2007. The period after 01.01.2007 is also covered by the present audit report. The appellant should have changed the classification from 01.01.2007 and started to pay the duty on the machines including the value of software. However, they have not done so and not informed the department is this regard. It was during the audit by the officer only, it has come to light. Therefo....