2006 (6) TMI 367 - AT - Customs

Summary

Issues Involved:
1. Misdeclaration of the value of modems and software.
2. Confiscation of goods under Section 111(m) of the Customs Act, 1962.
3. Penal action under Section 114A/112 of the Customs Act, 1962.
4. Reassessment of provisionally assessed clearances.
5. Demand for customs duty and interest.
6. Adjustment of deposited amount towards liabilities.

Detailed Analysis:

1. Misdeclaration of Value:
The central issue was whether the importer, M/s. Datamatics Ltd., split the value of modems and software to pay lower customs duty. The modems were declared under heading 8517.50 with higher duty, while the software was declared under heading 8524.90 with Nil duty under Notification 11/97-Cus. The investigation revealed that the goods were sold internationally as one package, and the operation manual indicated that the modem could not work without the software. The department contended that the value was split to evade higher duty on modems.

2. Confiscation of Goods:
The department alleged that the misdeclaration violated Section 111(m) of the Customs Act, making the goods liable for confiscation. The Commissioner, however, dropped the proceedings, stating that the modems and software were not integral parts and could function independently. The department argued that the software was supplied free and was complimentary, and the value split was intended to evade duty.

3. Penal Action:
The show cause notice proposed penalties under Section 114A/112 for willful suppression of facts and misdeclaration. The Commissioner did not uphold these allegations, leading to the department's appeal. The Tribunal referenced the case of CCEx v. ACER India Ltd., where it was held that software value cannot be added to hardware value for duty purposes. Thus, no penalties were warranted.

4. Reassessment of Provisionally Assessed Clearances:
The show cause notice included reassessment of five provisionally assessed clearances. The Tribunal found no evidence of inflated software prices or artificial value transfer from modems to software. Consequently, the reassessment was deemed unnecessary.

5. Demand for Customs Duty and Interest:
The notice demanded customs duty of Rs. 1,47,11,1195/- and corresponding interest under Section 28AB. The Tribunal upheld the Commissioner's decision, finding no material evidence to support the undervaluation charges. Therefore, the demand for duty and interest was not justified.

6. Adjustment of Deposited Amount:
The show cause notice proposed adjusting Rs. 43.00 lakhs deposited by the importer towards the liabilities. Since the undervaluation charges were not upheld, the adjustment of the deposited amount was not required.

Conclusion:
The Tribunal upheld the Commissioner's order, rejecting the department's appeal. The Tribunal emphasized that the split values for modems and software were legitimate and based on the supplier's price lists. No evidence suggested that the values were manipulated to evade duty. Consequently, there were no grounds for confiscation, penalties, or reassessment. The appeal was disposed of accordingly, granting the benefit of the Commissioner's order with consequential interest.