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TMI Blog2007 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... lore. 2. The appellants M/s. India Telephone Industries Ltd., Bangalore, had imported a total of 1,05,025 Fixed Wireless Telephones at the Air Cargo Complex, Bangalore. The issue involved in the present appeal is the correct valuation of these items, which have been imported from M/s. LGE, Korea. The appellants claimed that 70% of the value of the equipment imported represents the Hardware portion and 30% represents the Software. The IT software is not liable for duty. The unit price of the equipment is US$ 93.50 for certain equipment and US$ 95,00 for another set of instruments. The case of the Revenue is that the duty is payable on the entire value of each equipment imported. The split up of the value of the equipment at 70% value har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the duty demanded has been paid even before the issue of Show Cause Notice and before the Adjudication Order was passed. Therefore, he said that no penalty is leviable on the appellants. He relied on the following case-laws to hold that no interest or penalty can be demanded when the duty is paid before the issue of Show Cause Notice; (i) Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam - 2003 (161) E.L.T. 285 (T) = 2003 (54) R.L.T. 317(T) (ii) CCE, Visakhapatnam v. Rashtriya Ispat Nigam Ltd. - 2004 (163) E.L.T. A53 (S.C.) (iii) CCE, Delhi-III v. Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466 (T LB) = 2004 (62) R.L.T. 709(CESTAT-LB) (iv) CCE, Mangalore v. Shree Krishna Pipe Industries - 2004 (165) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that - • The item in question namely the IFWT Model LSP 340E has been supplied contemporaneously by the same supplier to other equally big importers in comparable quantities at a single integral price without any reference to any separate value for the so-called software; • The so-called software shipped separately by means of a CD is not technically required in as much as the TEC have confirmed that no such separate CD was supplied when the goods were presented to them for validation; • The software is already embedded in the telephones as imported; • The so-called software is not a separately tradeable commodity and no such evidence in this regard about its being a separately traded commodity has been produced. • The so-called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was whether the value of the software is includible or not in the value of telephones imported and the Tribunal gave a finding that the value of the software is not includible. The Tribunal, while coming to the above conclusion, relied on the decision of the Hon'ble Supreme Court in the case of Commissioner v. Acer India Ltd., which has already been cited by the learned Advocate. In the Bhagyanagar case also, similar equipment were imported and the value of the equipment imported was split up as 68 US$ for the telephone and 29 US$ for the CD-ROMs supplied. But, in the present case, the investigation has revealed that the foreign suppliers were very reluctant to split up the value at 70% and 30% and it is only at the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of US$ 93.50 or US$ 95.00 as the case may be, reflects a single integral price for each unit. We also hereby give our consent for the unconditional withdrawal of the claim of exemption on the Software relating to the import of IFWT LSP34OE imported from M/s. LGE, Korea from 13-2-2004 in all the Bus of Entry filed till date. It is therefore, requested that the differential duty in respect of the value representing Software together with other Statutory levies may please be informed to us so as to enable us to make the payment at the earliest. Since the matter is intended to be settled by payment of all the statutory levies, we hereby give our consent for waiver of issue of Show Cause. Notice and also we do not intend to be heard in per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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