TMI Blog2017 (11) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same software that came to India through the media as per page 17 of the appeal folder - Appellant was informed that unless the Bench is satisfied as to the character of the software contained in the hardware and also in the media, it is impracticable to conclude the matter. It is very clearly noticed today that insofar as classification of both the goods are concerned, that is not in dispute. So also there is no dispute that the software brought into India was classifiable under CTH 8534 and also enjoys the exemption under N/N. 21/2002-Cus. as herein before stated. In view of paucity of time, the matter could not proceed for which both sides agree to satisfy on the above aspect to the Bench on 15th November 2017 - Call on 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11,99,772.40 4,64,744.00 3 441833 17.6.2002 L40401 11.6.2002 8543.89 5% + 16% 2,19,91,184.50 47,94,078.00 4. 455989 12.7.2002 G-60918 8.7.2002 8471.49 5% + 16% 1,09,96,804.25 23,97,303.00 5. 492718 21.9.2002 L-76993 5.9.2002 8471.49 5% + 16% 39,59,847.94 8,63,247.00 6. 5369 28.11.2002 L95881 24.10.2002 8471.80 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data on to data media in coded form and machines for processing such data, not elsewhere specified or included 8471.10 - Analogue or hybrid automatic data processing machines 15% 8471.30 - Portable digital automatic data processing machines, weighing not more than 10 Kg, consisting of at least a central processing unit, a keyboard and a display 15% - Other digital automatic data processing Machines : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Heading 85 has provided that the same is classifiable under the same heading when presented with the apparatus and eligible to benefit of Notification 21/2002-Cus. dated 1.3.2002 under serial No.157 thereof. 4. Precisely the submission of appellant is that the software imported as per page 71 of the appeal folder, is entitled to exemption and the goods as stated in the Table at the outset were computer hardware and classifiable under CTH 84.71. Both the goods are distinct and were liable to be dealt under law separately. However, Revenue made an attempt to allocate the value of software of ₹ 3,94,00,694/- to the values of hardware of seven descriptions appearing in the said Table. This approach of Revenue gave rise to the controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eny that fact. Therefore the Tribunal concluded in that case that the software when imported in a media is not the type which was embedded or etched and no distinction can be made between the software in dispute and other software. Accordingly the value of software in a media was not addable to the value of hardware. 7. Argument of the learned counsel gives rise to the controversy to ascertain whether the software came in the media separately was the same as that was inbuilt in the hardware described in the Table herein before stated or that is a separate software which is sought to be included by Revenue in the value of the hardware. 8. A preliminary enquiry was made with the learned AR for Revenue to seek on the valuation and classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported. When there was a connection between the hardware and software, such value addition was brought to law for the purpose of levy. Appellant did not disclose that the software came through the media was forming part of the hardware imported as Tabled. There was suppression of such fact and also depression to the assessable value of the hardware. The reliance placed by the appellant on the Vodafone Essar's case is in a different circumstance compared to the present case. In the present case, Revenue, very categorically brought out in para 20 and 23(C) of the show cause notice what it intended to tax. 10. In order to determine the controversy, it is necessary that both sides are expected to demonstrate with tangible evidence whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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