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2019 (8) TMI 1697 - CESTAT MUMBAIClassification of imported Software - customized software or not - Benefit of N/N.06/2006Central Excise (Entry No 27) dated 01.03.2006 - reassessment of software “Bones Application TE Ver 2” and software “Da Vinci 2K” - under Rule 5(1)(b) of the Customs Valuation rules, 1988 - determination of assessable value - Confiscation - redemption fine - penalty - HELD THAT:- Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification - When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. Valuation of imported software - HELD THAT:- Commissioner has determined the value of the goods on the basis of contemporaneous imports made by similarly placed importer namely M/s Shemaroo from the same suppliers at about the same time i.e. March April 2006. The on the basis of value of the contemporaneous imports Commissioner has determined that undervaluation in respect of Bones Software was o the extent of 38.98% and for Da Vinci software 48%. It is settled law that the value of contemporaneous imports can be a good reason for rejection of transaction value - thus, the value determine by the Commissioner on the basis of contemporaneous imports rejecting the transaction value cannot b faulted with. Penalty - HELD THAT:- Since appellants have suppressed the value and have misdeclared the description by using the phrase “Customized” to avail the benefit of exemption from payment of CVD, in terms of Notification No 6/2006CE, the penalty imposed under Section 114A of Custom Act, 1962 cannot be faulted with - while imposing the penalty under Section 114A, Commissioner has imposed penalty equivalent to duty plus interest, which is contrary to provision of the section itself wherein section prescribes that the penalty impossible to be equal to Duty or Penalty. Confiscation - Redemption fine - HELD THAT:- The goods were not seized and provisionally released to the appellants against any bond and bank guarantee. Since the goods were never seized or released against the bond and bank guarantee, we are not in position to uphold the order of confiscation of goods and imposition of redemption fine, in view of the decision of larger bench of Tribunal in case of M/S. BHAGYANAGAR METALS LTD, SHRI NARENDERSURANA, MD, SHRI BALASUBRAMANIAN, VP, M/S. SURANA TELECOM LTD, SHRI BALASUBRAMANIAN, VP, M/S LG ELECTRONICS, M/S. HUAWAI TECHNOLOGIES CO LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-II, CCE, GOA [2016 (2) TMI 614 - CESTAT HYDERABAD]. Appeal allowed in part.
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