9911796707
TMI Blog2006 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... s confiscated and penalties imposed. 2. The relevant facts that arise for consideration are that the appellant- Company M/s. Contessa Commercial Co. (P) Ltd. imported CD ROMs and declared them to be falling under Chapter Heading No. 8524.31 of Customs Tariff and claimed benefit as envisaged at Sl. No. 173 of Notification No. 11/97-Cus., dated 1-3-97 as amended by Notification No. 3/98-Cus., dated 11th Feb., 1998. The authorities initiated investigations and statements of officials of the Company and others were recorded and a show cause notice was issued proposing the recovery of short paid of duty, confiscation of the goods and penalties on all appellants on the ground that the importer had misdeclared the goods and other appellants also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Promotion Council (sponsored by Ministry of Commerce, Govt. of India) and both the authorities after examining the CD ROMs have opined that they are interactive in functionality and qualify under the category of Computer Software. It was also further submitted that the whole SCN is bad as time-barred as the goods were imported and allowed to be cleared after reports from Government authorities and the statements etc. were recorded and completed in 1998 itself and the SCN was issued in 2001. It was also further submitted that, the decision of the Commissioner of Customs, Bangalore, in an identical case involving the identical products allowing the benefit of Notification No. 11/97-Cus. is not challenged by the Department and hence the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. He submits that the penalty is imposed on the appellant under Section 112 of the Customs Act is for giving a loan to M/s. Brisk Plastics Chemicals Pvt. Ltd. for purchasing the CD ROMs from M/s. Contessa Commercial Co. (P) Ltd. He submits that M/s. Padmini Polymer Ltd. has commercial/business transaction with M/s. Brisk Plastics Chemicals Pvt. Ltd. and on a specific request made by M/s. Brisk Plastic advanced the amount for business purposes. This act of accommodating can never be covered under the provisions of Section 112 of Customs Act, warranting penalty. 3.4. Ld. Advocate, Shri V.A. Mehta, appeared for the appellants, M/s. Brisk Plastics Chemicals Pvt. Ltd and the Director of the Company. He submits that penalty has been impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is correct. It was submitted in the light of all the evidences, the appellants should be directed to pre-deposit all the Government dues. 6. Considered the submissions made by both the sides and perused the records. We find that the confiscation of goods, confirmation of duties and imposition of penalties, are on account of the short levy of duty due to availment of ineligible benefit made in Notification No. 11/97-Cus. We find that the said Notification at Sl. No. 173 grants exemption from payment of Customs duty to Computer Software. We find that Sl. No. 173 of Notification No. 11/97-Cus. grants exemption to Computer Software if imported into India. The explanation of the said Notification gives what is meant by Computer Software . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s etc. will be eligible for this exemption wherever they satisfy the INTERACTIVITY CRITERION. From the above clarification by the Board, it is very clear that the exemption is granted to software containing encyclopaedia, games, books etc. if they satisfy the INTERACTIVITY CRITERION . In the appellants case before us, the Department of Electronics, Government of India were sent samples of CD ROMs for examining whether the CD ROMs could be categorized as Computer Software . The Senior Scientific Officer of Department of Electronics vide letter No. 23(2)/98-IPC, dated 6-7-98 after examining the samples, opined as follows : have been found to be interactive in functionality and qualify under the category of Computer Software . Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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