2013 (10) TMI 626 - AT - Customs

Valuation - Benefit of notification 21/2002-Cus - Import of telephone software - inclusion of value of software in the cost of equipments - Held that - facts of the case as brought out in the investigation prima facie supports the case of Revenue. The initial agreement do not indicate any separate supply of software. Only at the stage of issuing purchase order and the invoice the value is split. The case of Revenue is that the equipment as presented were loaded with software and the separate import of the software was a sham. The fact that Revenue did not notice it at the time of clearance of the import of the equipment may not come to the help of the applicants - The case laws cited by the counsel relates to software for ordinary computers and not for telecom equipment where hardware and software are developed and supplied by the same supplier in a pre-loaded manner - Thus the nature of the equipment vis-a vis the software is prima facie similar to that in that in the case of Anjaleem Enterprises Pvt. Ltd (2006 (1) TMI 271 - SUPREME COURT OF INDIA) and Bharti Airtel Ltd. (2012 (7) TMI 233 - CESTAT, BANGALORE) where the cases stand decided in favor of Revenue. In view of the Apex Court decision in the case of Anjaleem Enterprises which is not considered in the case of Vodofone Essar Digilink (2008 (10) TMI 173 - CESTAT, MUMBAI) we do not want to go by the said decision at this stage. Therefore, we consider it proper to call for a pre-deposit of Rs. one crore within eight weeks for admission of appeal - stay granted partly.

Issues involved:
1. Classification of software imported along with telecom equipment for duty exemption under notification 06/06-CE.
2. Whether the value of software can be considered part of the value of hardware for customs duty purposes.
3. Time-barred demand for duty.
4. Mis-declaration with intent to evade duty.
5. Applicability of case laws related to software for ordinary computers to telecom equipment.
6. Requirement of pre-deposit for admission of appeal.

Detailed Analysis:

1. Classification of software for duty exemption:
The appellant, a manufacturer of telecom equipment, imported software along with equipment and claimed duty exemption under notification 06/06-CE. The department alleged that the software was not custom-designed and thus not eligible for the exemption. The appellant argued that software should be classified separately from hardware, citing relevant case laws and chapter notes. The Tribunal noted the department's contention that the software was pre-loaded on the equipment and the value was split artificially. The Tribunal observed that the initial agreement did not indicate separate software supply, supporting the department's case. The Tribunal called for a pre-deposit for admission of appeal, considering the similarity of the case to previous judgments favoring revenue.

2. Value of software for duty assessment:
The appellant contended that software and hardware should be assessed separately, emphasizing that software was imported and presented separately. The department argued that software was integral to the equipment, as both were developed and sold together by the same manufacturer. The department alleged mis-declaration to evade duty and invoked the extended period for demanding duty. The Tribunal noted the department's argument that the software was part of the equipment and not declared as such by the appellant during import. The Tribunal considered the nature of the equipment and software, finding similarities to previous cases where judgments favored revenue.

3. Time-barred demand and mis-declaration:
The appellant claimed the demand was time-barred due to no mis-declaration in the bills of entry. The department contended that there was mis-declaration with intent to evade duty, justifying the extended period for demanding duty. The Tribunal did not find merit in the appellant's argument regarding the time-barred demand, considering the department's evidence of mis-declaration.

4. Applicability of case laws:
The appellant relied on case laws related to software for ordinary computers to support their argument for separate classification of software. However, the Tribunal noted that the cited cases did not directly address the issue of software classification in the context of telecom equipment. The Tribunal found the nature of the equipment and software in this case similar to previous judgments where revenue was favored.

5. Requirement of pre-deposit:
Based on the arguments presented by both sides and the investigation findings, the Tribunal called for a pre-deposit of a specified amount for admission of the appeal. The Tribunal waived the pre-deposit of interest and penalties for admission of the appeal, with a stay on their collection during the appeal process.

In conclusion, the Tribunal's judgment focused on the classification of software imported with telecom equipment, the assessment of software value for duty purposes, the time-barred demand, the alleged mis-declaration, the applicability of relevant case laws, and the requirement of a pre-deposit for appeal admission. The decision highlighted the importance of considering the nature of the equipment and software in determining duty liability and upheld the department's contentions based on the evidence presented.

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