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TMI Blog2020 (6) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ular software requires assessment as per the provisions of Section 4A of Central Excise Act, 1944. In view of the above, the impugned order in original is without any application of mind and therefore, the same is set aside and order that in view of the above instructions, the adjudicating authority needs to undertake re-adjudication of the matter and decide the matter afresh. Appeal allowed by way of remand. - Customs Appeal No. 51663/2019 WITH Customs Appeal No. 51664/2019 - FINAL ORDER NO. 50680 /2020 - Dated:- 4-6-2020 - Hon ble Mr. Anil Choudhary, Member (Judicial) Hon ble Mr. C L Mahar, Member (Technical) APPEARANCE: Present for the Appellant : Shri Krishan Kant, Advocate Present for the Respondent: Shri Rakesh Kumar, AR Per C L Mahar: The brief facts of the matter are that the importer appellant namely M/s.Trident Techlabs Pvt Ltd. are engaged in the import of software tools and educational kits (Educational Softwares). 2. Based on an intelligence, the department has initated investigations against the appellants suspecting that they have evaded payment of appropriate Customs duty by not adopting to and by mis-declaring the Maximum Retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppliers of softwares. The foreign based suppliers thereafter got the individual customised softwares developed for each individual buyers and same is supplied to the appellant by their foreign suppliers of the softwares. 5. The learned advocate further contended that the price got by them for the software includes overhead costs such as transport, insurance and applicable Customs duty. It has further been added that based on negotiations concluded with the individual customers and depending upon their general and specific requirements, the price quoted for the softwares also include elements of cost such as installation of the softwares at the customers site, on site training session, cost of visits to the customers premises as well as follow up measures and visits to the customers site during the given period and maintenance to ensure troublefree operations of the software tools. The learned advocate submitted that the appellants have submitted all the desired documents such as distribution agreements, purchase orders, copies of invoices, other agreements etc. which also included copies of end users licence agreement pertaining to software sold by them to various customers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Appellants was developed to meet the needs of variety of users and the same was intended for sale or capable of being sold off the shelf. No evidence by way of any expert opinion has been brought on record to prove the fulfilment of both these conditions. In absence of any such evidence on record, the softwares imported by the Appellants have not been notified by the Central Government under section 4A of the Central Excise Act and consequently there was no requirement for the Appellants to declare MRP and to pay the duty on the basis of MRP value. (v) On the other hand, it is very apparent from the statement dated 17.04.2017 of Shri George Anil D Silva, Assocaite vice President of the Appellant Company that the software was not intended for sale off the shelf. Shri George Anil D Silva was looking after pre-sales technical requirements of the customers. On being asked he has stated in his statement dated 17.04.2017 that they go for technical visit to the customers, talk to the relevant people, understand the requirements of the customers and find out the propose for which software is required. Afterwards they would communicate the same to the corporate office which in tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them from the manufactuer prior to 14.05.2015. With effect from 14.05.2015, provisions have been made more explicit by providing that these consumers can b uy packaged commodities from- 1. The manufacturer, or 2. An importer, or 3. Wholesale Dealer. (ix) There is no substance in the point that the package did not have declaration not for retail sale . It is submitted that such a declaration is only a procedural requirement to ensure that the packaged commodity is used by the Industrial/ Institutional Consumer only. There is no allegation in the show cause notice nor any customers from whom the DRI officers gathered the information have stated that they had themselves not used the software. Thus, from the investigation itself, it has been established that the softwares were used by the customers for their use. The Appellant relies upon the decision of Hon ble Supreme Court in the case of Mangalore Chemicals Fertilisers Ltd. Vs. Deputy Commissioner [1991 (55) ELT 437 (SC), UOI vs Suksha International and Nuton Gems [1989 (39) ELT 503 (SC), Global Sugar Ltd. Vs. CCE [2016 (334) ELT 604 (All), CCE vs JCT Electronics Ltd., [2011 (267) ELT 41 (P H) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection on the practice being followed by them with regard to the MRP declared by them. The learned advocate has relied on decisions of this Tribunal in case of CCE, Hyderabad vs ITW Signode India Ltd. [2005 (188) ELT 65 (Tribunal)] wherein it has been held that if the correspondence between the assessee and the Revenue which gives the details of the nature of product imported and processes followed were known to the Revenue, in that case, wilful mis-statement or suppression of facts cannot be alleged. 8. The learned advocate has also relied on Pushpam Pharmaceuticals vs CCE, Bombay [1995 (78) ELT 401 (SC)] wherein it was held by the Apex Court that when the facts were known to both the parties, the omission of one to do what he might have done and not that he must have done, does not lead to suppression of facts. The learned advocate has also relied of various other decisions in this regard. 9. We have also considered the submissions both written and oral made by the learned DR which are primarily reiteration of the findings given in the Order-in-Original. 10. We have heard both the sides and also perused the record of the appeal. We find that basic question for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /available off the shelf for sale. It is also relevant to have a glance at the provisions of Legal Metrology [Packaged Commodities] Rules, 2011 (as amended): 9.9. Legal Metrology (Packaged Commodities) Rules, 2011. The Notification dated 07.03.2011 issued by the Food and Public Distributions, Department of Consumer Affairs, Ministry of Consumer Affairs, New Delhi, contained the Legal Metrology (Packaged Commodities ) Rules, 2011, which inter alia states that: In exercise of the powers conferred by sub-section (1) read with clause (j) and (q) of sub-section (2) of section 52 of the Legal Metrology Act 2009, (1 of 2010), the Central Government hereby makes the following rules and they shall come into force on 1st day of April, 2011. RULE 2. Definitions. - (l) retail sale , in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales shops, agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer; (m) retail sale price means the maximum price at which the commodity in packaged form may be sold to the ultimate consumer. CHAPTER-II Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer or for wholesale dealer for use by the institution himself and not meant for any further retail sale. 14. During the course of hearing, the learned advocate has taken us through various orders which have been received by the appellant importer from various institutions such as DRDO, Ministry of Defence, Government of India, department of Atomic Energy, Department of Space technology etc. We find that these softwares have been procured by the appellant/importer from foreign suppliers on the basis of customised orders placed by these institutions to meet their specific needs. We find that where the customised orders have been procured by the importer appellant after detailed discussions with the concerned departments regarding their specific requirement for a particular kind of software and such software have been got prepared by the importer appellant from foreign suppliers and imported. We feel that such softwares cannot be considered as packaged softwares because such softwares are developed to meet the specific requirement of particular customer / buyer and it cannot be used by variety of users. We also feel that such software cannot be put for sale off the shelf an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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