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TMI Blog2015 (6) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant has not given the complete description in the ER-1 return. The ER-1 return indicated the description as CD-ROM. On the other hand, in the corresponding invoices, the description is very clear as Panasonic MP3 CD-ROM. There was no reason for the appellant to give different description in the statutory return. In fact, from seeing the statutory return, one would conclude that CD-ROM contains some software and would, therefore, be classifiable under Heading 8524.20. In view of the said fact, we have no hesitation in holding that there was suppression of facts with a wilful intention to evade duty. Therefore, in our view, the extended period of limitation has been correctly invoked - Decided against assessee. - Appeal No. E/210 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter software but is a very wide term and would include all types of software. It was further submitted that compact disks are not magnetic and Heading 8524.20 would be preferred over 8524.90 since it is more specific. It was also submitted that CD-ROM disc with MP3 files is not an audio CD but it is a software. The said CD-ROM disc contains audio songs in a MP3 format and the files are structurally and technologically different and the data can be manipulated and in view of the said position, it has to be considered as software. It was also submitted that the impugned order is passed on the basis of Wikipedia and is not sustainable. 2.1 Another contention of the learned counsel was that the demand is barred by limitation as the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of software and the essential thing in any software is that the software is a computer programme which enable computer to function. Further, such a software functions manipulating the data. The learned AR also submitted that it is very interesting to note that in all the ER-1s, the appellant was not indicating the goods as MP3 CD-ROM but was only indicating CD-ROM. From the said description, nobody can make out that the goods are MP3 CDs. It was only during the audit when the invoices were seen that it was found that in the invoices, the description of the goods is Panasonic MP3 CD-ROM. There is no reason why the appellant should not write the same description in the ER-1. This itself proves that there was a clear cut suppression with an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8524.90 - Other 16% It would be seen from the above heading that 85.24 covers records, tapes and other recorded media. Thus the essential thing is that the heading covers the recorded media. It is not in dispute that the goods under dispute were recorded with audio songs and there is no dispute that the goods will be covered by the Heading 85.24. The dispute is only whether these would be classifiable under Heading 8524.20 or 8424.90. It would be seen that 8524.20 covers software while sub-heading 8524.90 is residuary heading relating to recorded media. If one analyses the scope of the term 'software' in the background of various sub-classifications, it would be evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those dealing with it or as understood by the common parlance. In the case of Pentamedia Graphics Ltd. (supra), the Hon'ble Supreme Court has observed that the data recorded was capable of being manipulated by means of an automatic data processing machine and hence came to the conclusion that the said goods are software. 6. We also note that in the case of LML Ltd. (supra), the Hon'ble Supreme Court has observed as under:- 18. The term software is defined by the Advanced Law Lexicon (3rd Ed.) as distinct from hardware, the computer program enabling a computer to function . The same expression software is also defined in Britannica Concise Encyclopedia as the entire set of programs, procedures and routines associated with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designs do not provide instructions for the computer hardware to perform. At best, the said drawings and designs can be said to be are by-products and outputs of the computer software, which generate the designs and drawings. Therefore, such engineering drawings or designs data in a CD cannot be placed in the category of the term software . It is therefore held that the engineering drawings and designs contained in a CD ROM will not be covered Heading 85.24 of the Tariff. 7. Keeping in view our observation earlier that the MP3 CD-ROMs contain only audio songs which can be played on any MP3 CD player, these discs are neither interactive nor it is possible to manipulate the details in such CDs. In view of the said position, we have no he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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