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3. During course of hearing of the argument learned Counsel for the Appellant M/s. Shairu Gems Diamonds Pvt. Ltd. Mr. Jhamman Singh, on behalf of all other Appellants argued that issue concerning exclusion of the value of software from the hardware (machines) for assessment of Customs duty and the theory of 'essentially for functioning' of machines without software has been well settled at the C/86568, 86581, 86699, 86714, 86715, 86723, 86745, 86756, 86840, 86851, 86896, 86450, 86706, 86834/2016 & C/86414, 87302, 87965/2019 Hon'ble Apex Court level through series of judgments including those passed by the Constitution Bench. He further submitted that Hon'ble Supreme Court of India in the case of PSI Data Systems Limited had given a clear finding that value of softwares sold alongwith the computer is not includable in the assessable value of computers since there is a distinction between computer and its software, though it may not be capable of functioning without the software but it would not change its position that cost of software etched to the computer is not included. Bringing further development of law on record, learned Counsel also submitted with reference to the Constitution Bench decision of the Hon'ble Supreme Court passed in the case of Commissioner of Central Excise, Pondicherry Vs. ACER India Ltd. as reported in 2004 (172) ELT 289 (SC) that affirmed the decision of PSI Data Systems Ltd. Vs. Collector of Central Excise, reported in 1997 (89) ELT 3 (SC), which matter was taken further to another Constitution Bench constituted in the case of Commissioner of Central Excise, Indore Vs. Grasim Industries Limited, reported in 2018 (360) ELT 769 (SC), in which decision of ACER India Limited was referred and received approval thereby giving finality to the ratio of the judgment laid in PSI Data Systems Limited. Referring all those judgments this Tribunal in the case of Manjit Singh Vs. Commissioner of Customs (Import), Nhava Sheva, as reported in 2015 (323) ELT 377 (Tri. Mum.) has given a clear finding that hardware and software are to be assessed independently whether they were imported together or separately (same finding as in PSI Data Systems Ltd.) and therefore, allegation concerning such splitting of value for software and hardware artificially would be of no consequence since duty is leviable only on the value of hardware and not on software.

5.2 Now at this juncture, it is also required to be analysed as to if value of software is required to be added to the value of hardware for the purpose of demanding Customs duty on the diamonds scanning machine? In this regard both sides have placed judicial decisions favouring Appellant in rejecting such inclusion and also in acceptance of the claim of the Department that such value of software should be C/86568, 86581, 86699, 86714, 86715, 86723, 86745, 86756, 86840, 86851, 86896, 86450, 86706, 86834/2016 & C/86414, 87302, 87965/2019 included so as to consider the goods as single unit and therefore, there is a requirement of judging the precedent value on the issue only instead of delving into the detail of the intricacies of the issue. To start with, in going through the precedent decision cited on behalf of Appellant mainly passed by the Hon'ble Supreme Court in PSI Data System Ltd. which still holds the field as being reaffirmed subsequently through several decisions of the Hon'ble Apex Court including that of the Constitution Bench finally in 2018 in the case of M/s. Grasim Industries Limited (Respondent), cited supra in which it was clearly held that value of software sold alongwith computer is not includable in the assessable value of computers since there is a distinction between computer and its software. In the said judgment also the claim of the Respondent-Department that computer may not be operatable without a software for which cost of software etched into the computer is to be included, has well been negated by Hon'ble Supreme Court by giving example of typewriting machine and its ribbon in which distinction is drawn in citing reference to the judgment passed by the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. M/s. Kores (India) Ltd. to justify that without ribbons, when typewriters were sold, ribbon can't be considered as essential part to attract tax on it. It would be of substance be reproduced para 13 of the order passed by Hon'ble Supreme Court in M/s. PSI Data Systems Ltd. cited supra that would offer better clarity to the issue at hand, though passed in respect of Excise Laws. It reads:

Just so, the value of software, if sold along with the computer, cannot be included in the assessable value of the computer for the purposes of excise duty.

(Underlined to emphasise) 5.3 Though the said order was passed in respect of applicability of Excise duty, the ratio available in the same order is well applicable to the instant case and therefore, it has been followed by this Tribunal in several decisions passed by it including the one cited by learned Counsel for the Appellant in the case of Manjit Singh, in which affirmation was given to the order of the Commissioner in dropping the show-cause notice issued for clubbing of values of software and hardware. Further, in this contest, the judgment passed by Hon'ble Supreme Court in O.R.G. Systems Vs. Collector of Central Excise, Vadodara, reported in 1998 (102) ELT 3 (SC) is also required to be noted here for the reason that clear distinction was made in the said judgment concerning a computer and a computer system, in ultimately holding that computer and not computer systems are covered in the erstwhile Central Excise Tariff Act.