2017 (12) TMI 1209 - AT - Customs

Mis-declaration of value - section 19 of Customs Act, 1962 - Determination of duty where goods consist of articles liable to different rates of duty - Held that - Section 19 empowers the ascertainment of rate of duty when goods are presented as a set of articles for clearance. That it is not a provision for valuation should be apparent from the reference within it to specific and ad valorem as the two mutually exclusive possibilities. It empowers the application of the highest rate of duty that would be leviable on the various articles in the set to all the articles. Impliedly, this is to be resorted to when a single value is declared for the set as a whole and it is merely the most appropriate rate of duty that is to be determined from among the varied rates for each article in the set. The proviso in section 19 does not justify the conclusion that it is a valuation provision but is intended to permit separate assessment for such article in the set for which distinct is evidenced by the importer. The impugned order has referred to proviso in section 19 of Customs Act, 1962 as the authority to club the values of the various goods. There is no finding as to the applicability of section 19 of Customs Act, 1962 to the facts pertinent to the dispute. Such finding should necessarily decide if the goods are presented as a set of articles with a unified, non-separable value, enumerate the various articles that comprise the set, ascertain the rate of duty applicable to each and then compute the duty liability of the unified value by applying that identified rate of duty. Without such an exercise, invoking of section 19 of Customs Act, 1962 is not consummated. Appeal allowed by way of remand.

Issues Involved:
1. Misdeclaration of imported goods.
2. Incorrect denial of separate assessment for software.
3. Application of Rule 9 of Customs Valuation Rules, 1988 and Section 19 of Customs Act, 1962.
4. Eligibility for duty exemption under Notification No. 17/2001-Cus.
5. Recovery of differential duty and penalties.

Issue-Wise Detailed Analysis:

1. Misdeclaration of Imported Goods:
The telecom operator, M/s Vodafone Essar Ltd, was accused of misdeclaring the description of imported goods in the bills of entry to avail duty exemptions. The adjudicating authority concluded that the goods were misdeclared as multi-application computer system hardware and voice mail service hardware instead of their actual description, which was voice service director platform. This misdeclaration was intended to mislead and avail benefits of Notification No. 17/2001-Cus. The authority relied on confessional statements and documentary evidence to support this charge.

2. Incorrect Denial of Separate Assessment for Software:
The appellant contended that the software component was incorrectly denied separate assessment, which excluded it from the coverage of exemption. The adjudicating authority's decision to club the value of software with hardware was challenged, arguing that software should be assessed separately under heading 8524 of the Customs Tariff Act, 1975, and should be eligible for duty exemption as per Notification No. 17/2001-Cus.

3. Application of Rule 9 of Customs Valuation Rules, 1988 and Section 19 of Customs Act, 1962:
The adjudicating authority invoked Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, along with Section 19 of the Customs Act, 1962, to add the value of software to hardware. The appellant argued that Rule 9(1)(e) was not applicable as services are distinct from supplied goods and should be rendered post-clearance. The Tribunal found that Section 19 pertains to classification and not valuation, and the adjudicating authority was incorrect in its application of these provisions.

4. Eligibility for Duty Exemption under Notification No. 17/2001-Cus:
The appellant claimed that the imported software was eligible for duty exemption under Notification No. 17/2001-Cus. The adjudicating authority's denial of this exemption was based on the alleged misdeclaration and the inclusion of software value in hardware. The appellant relied on previous Tribunal decisions that supported separate assessment for hardware and software.

5. Recovery of Differential Duty and Penalties:
The adjudicating authority confirmed the recovery of differential duty and imposed penalties for the alleged misdeclaration and incorrect valuation. The appellant argued that there was no misdeclaration of value and that the services were not excluded from the price of hardware. The Tribunal noted the need for a detailed examination of the allegations, pleadings, and evidence on misdeclaration and valuation.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for fresh consideration. The authority was directed to reassess the allegations and evidence regarding misdeclaration, apply the invoked provisions correctly, and determine the duty liability and eligibility for exemptions accordingly. The appeals were disposed of by way of remand.

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