2020 (6) TMI 146 - AT - Customs

Valuation of imported goods - software tools and softwares - assessment for payment of Additional duty of Customs (CVD) - whether assessment to be done on the basis of Maximum Retail Price (MRP) / Retail Sales Price (RSP) or on the CIF value declared by the appellants? - HELD THAT - The order-in-original has failed to analyse the nature of individual software imported by the appellant importer and has not determined individual as to how every consignment of a particular software can be considered as a packaged software - also, the Tribunal is not right forum to undertake primary examination of nature of each individual software to determine whether the same is liable for assessment on the basis of MRP price or RSP value or not. Therefore, the original adjudicating authority need to undertake a detailed examination of the individual software and its related literature, specifications etc. for determining whether they fall under the category of packaged software or not. And to further ascertain whether a particular software requires assessment as per the provisions of Section 4A of Central Excise Act, 1944. In view of the above, the impugned order in original is without any application of mind and therefore, the same is set aside and order that in view of the above instructions, the adjudicating authority needs to undertake re-adjudication of the matter and decide the matter afresh. Appeal allowed by way of remand.

Issues Involved:
1. Alleged evasion of Customs duty by mis-declaring Maximum Retail Price (MRP) / Retail Sales Price (RSP).
2. Applicability of Section 4A of the Central Excise Act to the imported software.
3. Determination of whether the imported software qualifies as "packaged software" or "canned software".
4. Exemption under Legal Metrology (Packaged Commodities) Rules, 2011.
5. Allegations of suppression or mis-declaration of facts by the appellant.

Detailed Analysis:

1. Alleged Evasion of Customs Duty by Mis-Declaring MRP/RSP:
The department initiated investigations suspecting that the appellant evaded payment of appropriate Customs duty by not adopting the correct MRP/RSP on imported consignments of software. The Show Cause Notice (SCN) alleged that the software tools imported from September 2012 to March 2017 were liable for reassessment based on MRP/RSP for the purpose of Additional Duty of Customs (CVD). The SCN demanded short-paid CVD amounting to ?1,43,19,109/- and invoked provisions pertaining to confiscation and penalties under the Customs Act, 1962.

2. Applicability of Section 4A of the Central Excise Act:
The appellant contended that the provisions of Section 4A relating to the valuation of goods on MRP/RSP are not applicable to their imported software. They argued that Section 4A applies only to goods required to declare the retail sale price under the Legal Metrology Act or rules made thereunder and specified by notification under Section 4A. The appellant asserted that their software did not meet the criteria for "packaged software" or "canned software" as defined in the relevant notifications.

3. Determination of Whether the Imported Software Qualifies as "Packaged Software" or "Canned Software":
The appellant argued that their software, being customized for individual customer needs, did not qualify as "packaged software" or "canned software", which are developed to meet the needs of a variety of users and intended for sale off the shelf. They cited statements from company officials and the absence of evidence proving the software was for varied users or capable of being sold off the shelf.

4. Exemption Under Legal Metrology (Packaged Commodities) Rules, 2011:
The appellant claimed exemption under Rule 3(b) of the Legal Metrology (Packaged Commodities) Rules, 2011, which exempts packaged commodities meant for industrial or institutional consumers from the provisions applicable to retail sale. They provided evidence that their software was used by industrial and institutional consumers such as colleges, research institutions, and defense establishments, thus qualifying for the exemption.

5. Allegations of Suppression or Mis-Declaration of Facts:
The appellant contested the allegations of suppression or mis-declaration, stating that they had been transparent with the department and provided all requested documents during the investigation. They argued that the department's lack of objection to their declared prices during prior imports led them to believe their practices were acceptable. They cited legal precedents to support their claim that known facts to both parties do not constitute suppression.

Conclusion:
The Tribunal found that the adjudicating authority failed to analyze the nature of individual software imports and determine whether they qualified as "packaged software". The Tribunal held that a detailed examination of each software's specifications and use was necessary to determine if they fell under the category of "packaged software" and required assessment based on MRP/RSP. The Tribunal set aside the original order and remanded the matter for re-adjudication, instructing the adjudicating authority to undertake a detailed examination and decide afresh within three months.

Pronouncement:
The appeal was allowed by way of remand, with directions for re-adjudication within three months from the date of receipt of the order.

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