9911796707
TMI Blog2013 (8) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an assessable value of Rs. 16,41,68,213/- through IGI Airport, Delhi. They also imported 29,000 pieces of WLL loader software vide four Bills of Entry during October, 2001 declaring an assessable value of Rs. 8,98,94,383/- through IGI Airport, Delhi and Air Cargo Complex, Mumbai. After conducting investigation, the department was of the view that the appellant has artificially split up the hardware and software values and in as much as the software were cleared without payment of duty, the software module value should be added to the hardware module value and differential duty amounting to Rs. 3,48,21,488/- is liable to be demanded. Accordingly, a show-cause notice dated 27.05.2006 was issued by the Commissioner of Customs (Import & Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 2002 by declaring an aggregate assessable value of Rs. 22,60,81,355/- through Air Cargo Complex, Mumbai and IGI Air Port, Delhi. The proposition in this case was to club hardware and soft ware values together and demand differential duty of Rs. 8,75,74,874/- along with interest thereon and to confiscate the goods under importation apart from penalties on the appellant, its President and sr. Vice President. All the three show-cause notices were adjudicated by the Commissioner of Customs, Nhava Sheva vide the impugned order and the learned Commissioner held that in terms of the Note 6 to Chapter 85 read with Circular No. 51/2002-Cus dated 12.08.2002 and decision of the Hon'ble Supreme Court in the case of PSI Data System - 1997 (89) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the case of PSI Data System (supra) and ACER India Ltd. - 2004 (172) ELT 289 (SC), hold that hardware and software are to be assessed independently on merits whether they imported together or separately. This is the only allegation in the show-cause notice. The learned Commissioner has gone beyond the scope of show-cause notice by holding that the appellants have over-valued the value of software. In that also the learned Commissioner has committed an error by taking the value of software in respect of FWT/HWT module as USD 95032 as per the agreement dated 16.4.2001 entered into between the appellants and their foreign supplier. In fact, as per the agreement the said value of software pertains to networking software BSC (Base Statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rival submissions made before us we have examined the show-cause notice. Although in para 1 of the show-cause notice it is observed that the value being split artificially into value of the equipment hardware and software to avail benefit of nil rate of duty on the value of CD ROM/software in terms of Notification 17/2001 Sl. NO. 267/285. In paragraph 20 of the show-cause notice, the allegation has been concluded as under:- "20. From the foregoing it is evident that M/s Himachal Futuristic Communications Ltd, have deliberately split the value of FWT Module into the value of hardware and software and claimed benefit of Notification No. 17/2001 with nil duty for the software/CD ROM imported while paying the merit duty for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. and 29000 units of S/W WLL Loader, totally valued at Rs. 25,40,62,596/- and covered under Bills of Entry Nos. as mentioned in Table A and B above should not be held liable to confiscation under Section 111 (m) of the Customs Act, 1962 read with Section 46 (4) of the Customs Act, 1962 for mis-declaration of the value and contents. Further since these goods have already been cleared and not available for confiscation, why fine in lieu of confiscation should not be imposed under provisions of Section 125 of the Customs Act, 1962. 6.1 On going through the conclusion of the show-cause notice in the proceedings paragraphs, we find that the allegation against the appellant was that the appellants have artificially splited into the values to so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC (ii) Parts of BTS (iii) Other items such as Inter Working Controller, Operation Maintenance Controller, Documentation for System description/Operation and (iv) software. These software comprises of Networking Software for BSC, Networking Software for BTS and Networking Software for IWF. There is no mention in the agreement that the software value of USD 95032 pertain to fixed FWT/HWT modules imported by the appellant. Therefore, it is not understood how the Commissioner has arrived at a value of USD 95032 in respect of software module imported by the appellant. On the contrary, there are letters between the foreign supplier and the appellant indicating that in respect of FWT/HWT hardware, agreed prices are USD110 and for software USD 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
