2005 (8) TMI 208

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....iable under CH. 90.32 of the C.E. Tariff. The DCS manufactured and cleared by the respondents are used in various industries like chemical, paper, petroleum, etc. to control the processes like pressure, temperature, humidity, flow of liquids, etc. For the functioning of the DCS, application software is also required. The customers place consolidated purchase orders on the respondents for supply of DCS and software. The customized software is supplied separately under commercial invoices and gets loaded at the customer's site into Engineering/Operator Workstation, which are nothing but data processing machines. The software is loaded on to the computers using conventional computer loading devices like, CD, Floppy etc and each of the DCS is i....

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....has been a deliberate attempt on the part of the assessee in raising separate invoices for Software wherein they have classified the same under CH. 8524.20 and cleared without payment of duty. (ii)      As per Board's Circular No. 644/35/2002-CX., dated 12-7-2002, the value of the Software that is already etched or burnt or loaded on the hard disk is to be added to the value of the Computer. 3. Shri Ganesh Havanur, the learned SDR appeared for Revenue and Shri G. Shiva Dass, the learned Advocate for the respondents. 4. The learned Advocate made the following submissions :- (i)       The Show Cause Notice issued in this case proposed to re-classify the software under Heading ....

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....invoiced separately. The Board's Circular dated 12-7-2002 clarifies that if the Software is supplied in floppies, CDs, etc. then it would be classified separately. This point has been settled by the Supreme Court in the case of CCE v. Acer India Ltd. - 2004 (172) E.L.T. 289 (S.C.). 5. The learned SDR reiterated the grounds of appeal. 6. We have gone through the records of the case carefully. In the Show Cause Notice, the Revenue proposed to classify software under Chapter Heading 85.37. The CH. 85.37 speaks about boards, panels, consoles, desks, cabinets, etc. equipped with two or more apparatus of Heading 85.35 or 85.36 for electric control or the distribution of electricity. As rightly observed by the Commissioner (Appeals), Softwar....