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TMI Blog2018 (8) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... isite conditions of the Chapter Notes 8523 for software under 8523. The certificates issued by the Radiologists or in-charge of radiologist centres/hospitals also pointed out to this effect that the QPC X software is a image processing software with additional facilities of QPC, the data base of the computer system and the CD can be loaded to any computer - This is not be construed as a customer built software in the instant case. There is no justification for interfering with the opinion expressed by two learned Commissioner (Appeals) in classifying the product under 8523 8020 - the software imported by the appellants is a standalone independent software as given in the form of CD and can be loaded on any ADM. Under these circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken by the Department in classifying the software imported along with ICR 1000 (RSC) under Chapter Heading 9022 14 90 is appropriate but reduced the fine to ₹ 42,000/- (Rupees Forty Two Thousand only) and upheld the personal penalty of ₹ 16,000/- (Rupees Sixteen Thousand only). Aggrieved by the Order of the Commissioner (Appeals) the appellants are filed the present appeal i.e. C/315/2008. There are two other appeals connected with the matter C/246/2009 and C/1852/2010 filed by the Department against the orders of the Commissioner (Appeals) who has set aside the assessment by the Department and classified the software under CTH 18238020. As the issue involved in all the three appeals is same, all the appeals are taken togeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they accepted to pay the duty on import for the whole equipment value as per supplier s invoice and have requested for waiver of show-cause notice. 3. The learned counsel for the appellants has submitted that the series of the letters within a short span would indicate the duress and the stress under which the acceptance letter was obtained from them committing that they had made a mistake and they do not require any show-cause notice. It is a fact that as the equipment was urgently needed by their client and they were in the danger of losing business, they have given a letter as per the details of the Department. Even then the necessity for a speaking order was never waived. 3.1. Coming to the classification of the software they subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon therein. It can be seen that the learned Commissioner (Appeals) in respect of their subsequent imports in 2008-09 has classified the software under CTH 8523. Therefore, they have a strong case in their favour. 3.3. On the issue of levying redemption fine and penalty, where show-cause notice and speaking order was not issued, the learned counsel for the appellants has relied upon the following case-law: a. Laxmi Cotton Industry Vs. Union of India 2015 (323) E.L.T. 264 (Gau.) b. CCE Cus. Vs. Nakoda Textile Industries Ltd. 2009 (240) E.L.T. 199 (Bom.) c. Henkel India Ltd. Vs. CC (Sea Port), Chennai 2007 (217) E.L.T. 61 (Tri.-Chennai) d. R. Sivakumar Vs. CC, Chennai 2007 (213) E.L.T. 526 (Tri.-Chennai) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the classification of a software. In para 8 of the Order-in-Appeal 156/2007 the learned Commissioner (Appeals) has categorically stated that the case-law cited by the appellants were in respect of a machine software and hence were not relevant to the instant issue. 5. Heard both the sides and perused the records. The brief issue to be decided in this case is whether the impugned software is IT software or a software tailor-made to a particular machine and as to whether the software is eligible for exemption under Notification No. 7/2007. We find that the Chapter Note to Chapter 85 states that for the purposes of heading 8523, Information Technology Software means any representation of instructions, data, sound or image, including so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t internet connection. It is to note that the manual at 4.0 giving instructions for software installation states the QPC XScan 32 software comes bundled with the CR unit. This software package will allow you to control the CR unit and further states that if the QPC XScan 32 is already installed on the computer, the new conversion requires to be reinstalled. Going by the terminology used in the manual it gives an understanding that the software is manufactured of functioning independently and can be loaded on any computers. This fulfills the requisite conditions of the Chapter Notes 8523 for software under 8523. The certificates issued by the Radiologists or in-charge of radiologist centres/hospitals also pointed out to this effect that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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