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TMI Blog2003 (10) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... er due examination did not accept their claim and initiated proceedings for reassessment of the goods. The appellants vide their letter dated 22-11-2000 waived the issue of show cause notice. However, they requested for a personal hearing and contended that their declaration and their claim for benefit of notification is justified. The department proceeded on the basis that the items are not software but they are parts of Telephony System for classification under chapter heading 8517.90 and it has not been granted benefit of notification. The appellants were burdened with differential duty besides imposition of penalty under Section 114A of the Customs Act besides interest on the ground that they misdeclared the goods. This order has been passed in Order-in-Original No. 4/2001 Commr. (Air) dated 6-1-2001. 2. In appeal C/14/2002, the Commissioner of Customs (Air) in Order-in-Original No. 41/2001 (ACC), dated 9-10-2001 has again ordered for assessment of same goods Springware Software as parts of Telephony Systems under chapter heading 8517.90 without benefit of notification claimed by the appellants. Their duty has also been confirmed besides imposition of penalty. The goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been considered and a clear finding has been recorded that the item is not part of telephony equipment but a software and eligible for the benefit under Notification No. 20/99 and 23/98 in the respective serial numbers. The findings recorded in Paras 8 to 21 are extracted herein below and the same are hereby followed :- 8. We have carefully considered the submissions made by both sides and have perused the order. It is seen that the appellants had filed the Bill of Entry in February, 2000 on the basis of entire material and other details claiming the benefit of Notification No. 20/99 under Sl. No. 231 at Nil rate of duty under the Tariff Heading 8473.30 as parts and accessories of the machine of Heading 84.71 in respect of computer software, Dialogic System Software, the claim was under Heading 8524.99 as Other under the heading Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records. The department has assessed the same and had cleared for home consumption except for a few of the software which had been kept in the warehouse. Subsequently, the department took up the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated : 21-1-2002 To Bay Talkitec (P) Ltd. No. 42, Sardar Patel Road Opp. Raj Bhavan Telephone Exchange Guindy, Chennai - 600 032 Sir, Sub. : Clarification on Dialogic Card. With reference to the above, I have gone through the data sheets pertaining to Dialogic Card and also the Software CD of Dialogic Corporation. On going through the same, I conclude that the Dialogic Board does not have any Non-Volatile storage devices such as EPROMs or PROMs on it. Hence, there is no way that the firmware can be stored on the board. However, the board is having Read Write Memory (RAM) on it. Due to this reason, it cannot store software, whenever the power is switched off. It is confirmed that the Firmware has to be down loaded into the on board RAM (Read Write Memory), whenever required. To answer your specific question as to whether the board can come with the software, my answer is No. This is for your information. The question and answer given by the Business Development Manager of Intel to the appellants in respect of goods have already been brought out by the Counsel in the arguments and noted down supra which clearly described that the item spring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the card. 3. Can the Dialogic Voice/Fax Boards work without the software (Springware) given in the CDs? Ans : No. The Springware Software given in the CD is required to be downloaded during the use. 4. Does the Springware software gets downloaded when the PC is Powered ON and appropriate command given? Ans : Yes, the software gets downloaded when the PC is powered ON either from CD or Hard disk when appropriate command is given. 5. Once the Dialogic board is powered off by switching off the PC on which it is installed, can the board retain the software? Ans : Dialogic Card cannot retain the Software when the PC is powered off as there is no permanent storage device on it. 11. The opinion of BSNL furnished by appellants is as follows :- Sub. : Clarifications regarding Dialogic Board and software. Ref. : Your letter dated 22nd February, 2003 on the subject. With reference to your letter seeking clarification on the Dialogic Board software used in the IVRS systems you have supplied to Bangalore Telecom District the following clarifications are offered : 1. Can the Dialogic Voice/Fax Boards work without a PC? Ans : Dialog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the CD, the software gets downloaded on to the RAM of the board, through a command. As the board does not have any permanent storage device, the software cannot be embedded on to the board. 3. Can the Dialogic Voice/Fax Boards work without the Software (Springware) given in the CDs? No, the boards cannot work with out Springware software, that comes along with Dialogic Card in the form of a CDs. The board derives its intelligence only from the software provided on the CD. 4. Does the Springware software gets downloaded when the PC is powered ON and appropriate command is given? Yes. The software gets downloaded when the PC is powered ON and appropriate command is given. It is also possible to load one particular version of the software, switch OFF the PC and load a different version of the software. 5. Once the Dialogic board is powered off by switching OFF the PC on which it is installed, can the board retain the software? No. Dialogic Card cannot retain the Software when the PC is powered OFF. Because, the board does not have any permanent storage device which can store the software. So, whenever PC is powered ON along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh High Court as rendered in the case of Panama Chemical Works v. UOI (supra); Mangal Textile Mills Pvt. Ltd. Anr. v. UOI (supra); Medwin Imageology Center Ltd. v. CC, Hyderabad (supra) and that of Life Line Systems Pvt. Ltd. v. CC, New Delhi (supra). 19. We also agree with the ld. Counsel that in the present case the extended period of limitation is not invocable when the split up value of the item had been furnished and there was no challenge to the valuation taken up by the department. The valuation has been accepted. Therefore, it cannot be held that there was any suppression in the matter. In this regard, the citation referred to by the Counsel is applicable i.e. Tata Infotech Ltd. v. CC, Mumbai/New Delhi (supra). 20. The order of confiscation is also not sustainable in the light of the judgment rendered by this Bench in the case of CCE, Madras v. Aradhi Associates (supra). 21. In that view of the matter, the contention of the appellant is accepted and the impugned order is set aside by allowing the appeal with consequential relief, if any. Ordered accordingly. 6. Respectfully following the ratio of our earlier order, the impugned orders are set aside and both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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