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TMI Blog2002 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi in which it was averred that another importer had filed a Bill of Entry dated 6-1-96 and cleared the two sets of the same goods at the declared value of US$ 58,890/- FOB per unit; that in that case Application Software for Image Setting comprising of RIP and Escor II screening were imported with the machines but no separate value was shown for the software and that the supplier was also the same as in the case of the present importer; that the machines imported in the two cases were identical and had been supplied by the same supplier within a time interval of less than two months; that since the declared per unit value in the case of Bill of Entry under consideration was much lower than the other goods, the value of the same was mis-declared to evade duty. It was further alleged that separate values of the machines of software had been shown in the invoice as a deliberate attempt to evade duty because separate values for these goods did not appear to exist and they were always sold and used as sets. The appellants were therefore called upon to show cause as to why the transaction value should not be rejected why the value of the machine and the software should not be clubbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants during the re-adjudication proceedings. Thus, this appeal is allowed by way of remand. Ordered accordingly . 4. The Commissioner of Customs, Air Cargo, New Delhi has passed the Order dated 20-5-2002 on remand which is impugned before us. The Commissioner in this order has observed that the identical goods have been supplied by the same supplier to another importer in India at the same time at much higher value which clearly shows that the price in the present case does not represent the value of the goods at which they are normally sold and cannot be accepted as proper price under Section 14 of Customs Act, 1962; that in view of these facts, the transaction value cannot be accepted in this case; that the goods at the same commercial level and higher quantity have been supplied to M/s. Business Standard an unrelated and independent importer, hence the value need to be taken as US$ 58,890/- in terms of Rule 5 of Customs (Valuation) Rules, 1988. The Commissioner relying on the judgment of the Hon ble Karnataka High Court in the case of M/s. Wipro Infotech Ltd. v. C.E.G.A.T. - 1995 (75) E.L.T. 266 (Kar.) has held that the software which is supplied with the hardware and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh a copy of the purchase order dated 29-11-95 placed by the appellants on the supplier and the commercial invoice dated 29-12-95 issued by the suppliers in which the value of the machine and that of the application software value are given separately as US$ 33,541/- and US$ 10,200/- respectively. The ld. Counsel for the appellants is relying on the decision of the Tribunal in the case of M/s. New Holland Tractors (I) Ltd. v. CC [2002 (144) E.L.T. 410 (T) = 2002 (50) RLT 499 (CEGAT-Del.)] It is contended that the supply of the goods to an individual importer and to a distributor are at different commercial levels and therefore, the value in respect of the import made by M/s. Business Standard of the same goods cannot be made applicable to the present appellants since the goods are supplied to them as a distributor. The ld. Counsel for the appellants has further supported the additional discount of 15% given to the appellants on account of the imported goods being meant for demonstration in an exhibition and not for resale. He submitted that there was no after sales service involved in the import of the product. Reliance is also placed on the decision of the Tribunal in Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) C.C., Chennai v. Hewlett Packard Ltd. - 1999 (108) E.L.T. 221 (T) (b) New Holland Tractors (I) Ltd. v. C.C. - 2002 (144) E.L.T. 410 (T) = 2002 (50) RLT 499 (CEGAT-Del.) 7. In view of the above legal position, there is no warrant to reject the transaction value in case of the appellants. 8. The next point for consideration is the clubbing of the value of the machine with that of the software. As rightly contended by the ld. Counsel for the appellants, the Hon ble Supreme Court in the case of PSI Data Systems Ltd. - 1997 (89) E.L.T. 3 (S.C.) have held that heading No. 85.23 or 85.24 deals with records, tapes and other recorded media, similar recorded phenomena including matrices and masters for the production of records and includes gramophone records/tapes, audio cassettes, video tapes, video cassettes, magnetic diskettes and other cassettes and diskettes. Further as per Chapter Note 6 of Chapter 85 :- Records, tapes and other media of heading No. 85.23 or 85.24 remain classified in those headings, whether or not they are cleared with the apparatus for which they are intended. The Hon ble Supreme Court in their judgment have further observed that a computer and its soft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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