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TMI Blog2017 (9) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... software has, in fact, been ordered by the appellant and have been delivered to them by DHL. These actions clearly establish that the appellant is to be considered as the importer under Customs Act and, therefore, liable to the payment of customs duty. The portion of the license fee, which was paid by the importer of software which was repatriated to the foreign supplier of software, needs to be included in the assessable value of imported goods. Time limitation - Held that: - there is no evidence which implicates the appellants - There were also very much aware that such software was to be supplied by SAP Germany and is an import transaction. But for the detailed investigations carried out by DRI, the evasion of custom duty would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urier mode during the period March, 2006 to September, 2006. The investigations revealed the following : SAP AG Germany develops packaged software and owns proprietary rights over such software. SAP AG Germany has signed a Software Distribution Agreement (SDA) with their subsidiary in India SAP India. According to this SDA, SAP India identifies customers and procures orders from various importers in India and signs the End Users License Agreement (EULA) which entitles the end users, either to download the software electronically or to import the same in CD/DVDs through DHL courier. The Indian Customer pays license fee to SAP India, out of which they retain a part and transfer the balance to SAP AG Germany. SAP Germany ships the software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as Shri Govind Dixit and S. Nunthek, DRs appearing for the revenue. 5. There was a query from the Bench whether the appellant takes the plea of jurisdiction, since the investigation into the matter has been carried out by the Directorate of Revenue Intelligence, in view of the matter pending before the Apex Court in case of the Mangli Impex. Learned Counsel for the appellant argued that the appellant is not taking such a plea since the SCN in the present case was issued by Additional Commissioner Customs, even though the investigation was carried out by DRI. Accordingly, he prays that the matter may be decided on merit. 6. On merit the Ld. Counsel Shri Udhav Jain made the following main arguments. i. The appellant cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Oracle India Vs CCE, New Delhi - 2015-TIOL-1766-CESTAT-DEL which has also been upheld by the Hon ble Supreme Court of India in civil Appeal No.13443/2015 wherein the importers appeal was dismissed by the Apex Court. The Tribunal had categorically held in the Oracle Case that the license fee paid by the importer in India to the foreign supplier of software through the Indian subsidiary is to be included in the assessable value of goods (software). The Ld. DR further submitted that the appellant and SAP India are also liable for penalty for engineering the under valuation of the software imports. 8. We have heard both sides and perused records. The appellant has claimed that they cannot be considered as the importer, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 10. The appellant has also raised the argument that duty involved in the consignment has already been paid by SAP India and hence, same cannot be demanded from the appellant, once again. From the record, we find that SAP has paid some custom duty during the course of investigation undertaken by DRI. It is also seen that most of the amounts paid by SAP India have also been claimed back by them by filing refund claims. Further, we note that the appellant has also paid customs duty amounting to ₹ 17,86,775/- during the course of investigation which stands appropriate by the adjudicating authority. 11.We have gone through the Tribunal s decision in the case of Oracle India Private Limited (supra) where the Tribunal had occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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