TMI Blog1997 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been shown in the invoice as French Franc 4200. On a search conducted by the authorities they found in respect of the very same goods the appellants had another invoice showing no charges and also the order under which the goods have been supplied showing the value of the goods is French Franc 320000. The statements were recorded from some of the officers of the appellants and also about how the different invoices came into existence. The Vice President of the company Shri Ravichandra, it is seen from Para 6 of the order of the lower authority accepted the fact of under-valuation to evade duty and the attempt which had been made to under-value the goods by replacing the invoice of the higher value for one with lower value. The duty which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lighten us as to the terms of any agreement and for what consideration the item was first shown as on no-charge basis and subsequently it was shown as for 4200 French Franc. He, however, accepts the position that the commercial value of the goods as shown in the order cannot be disputed. His plea is that this commercial value of the software could not be adopted as the assessable value under Section 14 of the Customs Act, 1962 as the value of the software comprises of two components viz., the carrier on which the software is encoded and the encoded material which is retrieved for further use in the appellants firm. He has pleaded that the encoded material was in the nature of intellectual properly and that being not goods, the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods based on HSN and has drawn our attention to the entry at Sl. No. 85245309.10 wherein there is a specific entry for computer software. He has pleaded that the appellants plea that 8524 in the Customs Tariff does not refer to software is also not sustainable inasmuch as the entry is meant to cover the recorded media for information and software is one such recorded item. He has also pleaded that Notification 138/91, 95/93, 140/91 which have been issued in the context of the 100% EOUs deals specifically deal with software development etc. His plea is that software as such is recognised as a commodity by itself and, therefore, it is to be dealt with as such and there is no question of splitting the value of a software imported between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . What has been sold to the appellants is a package which acquires value by the characteristics which have been built into it and it is this value of the goods for their intrinic worth which forms the value for commercial purposes or in other words, this is the transaction value for the goods. Section 14 does not admit of any split up of the value between the components i.e. separately for medium, separately for the information which has been recorded. Section 14 talks about the deemed value in respect of the goods and the same is defined as under : 14. Valuation of goods for purposes of assessment. - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force whereunder a duty of custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Ascertained in such manner as the Central Government may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) `foreign currency and Indian currency have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1973 (46 of 1973). Therefore, what follows from this is that the value to be adopted is in respect of the goods as these are imported. There is no denial from the appellants that the goods as are imported comprise of the medium on which information is recorded. It represents one entity and it is this entity which is to be considered as goods for the purpose of assessment. There is nothing in the valuation rules to say that the goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not having been done and also the fact that the senior executives have admitted that they have resorted to the preparation of multiple invoices and wrong invoice to evade duty to have the benefit, cannot be accepted. The appellant s plea that the burden is on the Department to prove mala fides on the part, we observe that this is amply discharged and reliance has been placed on the statement of Shri Ravichandra, Vice President of the company. 5. We in the circumstances hold the charge of mis-declaration has been brought home. The goods have, therefore, been rightly confiscated and the duty has been rightly demanded from the appellants and they are rightly liable (sic) to penalty. The penalty of Rs. 1 Lakh levied in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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