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TMI Blog2006 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned items. It appeared that the importers had declared a much higher value than the actual value of the goods with an intent to send out foreign exchange, which was to be subsequently brought in as remittance for export of CD ROMs under DEPB/DEEC Scheme for availing export incentives. Shri Dharmesh Shah is the Proprietor of M/s. Vaishal Impex. It was further revealed that the L/Cs. for the payment of the impugned goods had been opened by M/s. Adani Exports Ltd. Further it appeared that M/s. Vaishal Impex only acted as a frontman for M/s. Adani Exports Ltd. in the import. M/s. G.A. International is a sister concern of M/s. Adani Trading Company, operating in Jabel Ali Free Zone. The said concern exported the CD ROMs and had used the name of Computer Point, Dubai, to complete the formalities relating to the exports and prepare necessary documentation. Shri Vinod Shantilal Shah, the contact person of M/s. G.A. International, is the brother of the Chairman and Managing Director of M/s. Adani Exports Ltd. After elaborate investigation, Show Cause Notices were issued to the concerned persons under the Customs Act. The Show Cause Notices raised the following issues. (i) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Notification to similar goods has been settled in favour of the appellants by the Apex Court in the case of Pentamedia Graphics Ltd. as reported in 2006 (198) E.L.T. 164 (S.C.). (ii) With regard to the valuation of goods, the case of the department is solely based on the export declaration filed by M/s. Gulf Software, which supplied the identical goods to M/s. Contessa Commercial Co. Pvt. Ltd. The Tribunal has held that the above declaration is not relevant for the purpose of determination of value under Section 14 of the Customs Act, 1962. Further, the Tribunal, in the case of CC v. Dimple Overseas - 2005 (190) E.L.T. 58 has held that the export declarations filed by the Overseas parties have no bearing on the determination of value under Section 14 of the Customs Act, 1962. (iii) In similar case of import at Mumbai, Bangalore Goa, the department has accepted the declared value and no appeal has been filed. 5.Shri K.M. Mondal, the learned Consultant and assisted by the Departmental Representative Shri K. Sambi Reddy, urged the following points. (i) At the outset, the learned Consultant referring to a definition of Computer Software in Notification No. 11/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Tribunal in the case of Orson Electronics Pvt. Ltd. v. CC, Bombay - 1996 (82) E.L.T. 499 (Tri.). In this case, the Tribunal has held that export declaration showing higher value before the Japanese Customs can be adopted for the purpose of determination of value under Section 14 of the Customs Act. The above decision has been confirmed by the Hon'ble Supreme Court as reported in 1997 (93) E.L.T. A133 (S.C.). (vi) The contention that in a similar case, the Department has accepted the order of the Commissioner of Customs of Bangalore and that no appeal has been filed, cannot be taken as a binding precedent. It is still open to the Department to correct an erroneous view at a later stage. In view of the above submissions, he urged the Bench to uphold the OIO. 6.We have gone through the records of the case carefully. The appeals involve the determination of the following issues :- (i) Whether the goods declared as "Computer Software on CD" or Computer Software eligible for benefit of Customs Notification 11/97-Cus. dated 1-3-1997 as amended vide Sl. No. 173 of the Table annexed to the Notification. (ii) Whether the value of the goods is mis-declared and highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o load a programme on the computer then the programme which has to be loaded on the computer continued to be software. Simple because the 'Motion Capture Animation Files' requires another software known as 'soft image' to get the final result does not detract the goods under import from being software. The same continues to be software and entitled to exemption under Notification No. 20/90-Cus." It therefore follows that so long as the CD ROMs were capable of interactivity, the same would be covered by the definition of 'computer software' contained in the said notification. There is no condition or requirement in the said notification to the effect that in order to qualify as computer software, it must work without any operating system pre loaded on and automatic data processing machine, i.e., the computer, the Hon'ble Supreme Court has referred to various dictionary meanings of the term 'software' and concluded that any program which requires another program like the operating software, will also be treated as computer software. The eligibility to notification has to be upheld. (b) The Commissioner has relied upon the judgment of the Hon'ble Supreme Court in Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplier after conducting full inquiry. The department has not challenged that order and has accepted the findings therein. We therefore find that even if the declared value is not acceptable as Transaction Value due to the suspicion, after discarding the same, similar comparable goods prices have to be accepted as per the data detailed in the Chart. (d) Yet another circumstance is the opinion of the Electronic and Computer Software Export Promotion Council, who vide letter dated 19-6-1998, opined that the value of USD 15 is fair in the international market. There is no other evidence contrary to this expert opinion which was sought by the Department before releasing the goods. There is also force in the submission of Shri Bagaria that there is no evidence of export declaration at lower price by the same supplier in relation to other importers of similar goods at other ports in India and that merely because according to the Commissioner no enquiry was made in other cases of export from UAE by the same supplier cannot be held against CCCPL. The submission of Shri Bagaria that since the goods are wholly exempt from Customs duty, there could be and is no motive in mis-declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded, opinion of two government agencies, who confirmed the correctness of the value as well as description. Thereafter, the same were released. The importer disclosed all facts and documents. Nothing incriminating has been recovered from CCCPL. The case is based upon subsequent inquiry at the suppliers' end, satisfactory explanation has been given by him. We have perused the correspondence, before issue of show cause notice, exchanged between Gulf Software, Consulate and DRI and find the explanation to be acceptable. There is nothing on record to show that CCCPL had prior knowledge about the first export declaration filed by Gulf Software which they did not disclose nor is any provision shown to us that they were required to disclose the same. CCCPL has not suppressed any fact or material and hence, the ingredients of the proviso to Section 28(1) are absent. The Commissioner has wrongly resorted to demand duty under Section 28(1) of Act. We would uphold the bar of limitation to be applicable in this case. (h) As we find that there is no mis-declaration, we hold that the goods are not liable for confiscation under Section 111(m). The Hon'ble Supreme Court in Northern Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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