TMI Blog1998 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ds diskettes and 40% value towards the aforesaid manual as per the established practice of the Customs House which is not denied by the Adjudicating Authority in the impugned order. The goods were examined by the Customs. Software in diskette form was classified by the Customs under Heading 85.24 and the manual in the printed book form under Heading 49.01, as per the said practice. 2. Later on, it appears that the Department had change of mind consequent to decisions in some Collectors Conference. In August, 1991 they, therefore, issued a show cause notice alleging that the appellants had misdeclared the description of the goods and value by describing the goods in the aforesaid two categories thereby causing an evasion of duty. The good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. 13. Ld. JDR, Shri R.S. Sangia reiterates the findings of the Adjudicating Authority - The above discussions will only bring out one fact that the Customs authorities assessed for import duty purposes diskettes and manuals separately classifying them under Chapters 85.21 and 49.01 respectively and for this purpose the split up of 60:40 was being accepted by the Customs authorities for the purpose of apportionment of the value for the two. This position remains undisputed and unchallenged. However, on going through a show cause notice I find that no demand of duty has been issued under Section 28(1) of Customs Act, 1962. The reply of the importer time and again hinges on the aspect of time bar. However, time limit provided unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of fine in lieu of confiscation under Section 125 of Customs Act, 1962. The basic issue therefore for determination would be whether the computer software under seizure is liable to confiscation under Section 111. If there is enough evidence in support of the allegation that goods are liable to confiscation under Section 111 and the goods are ultimately ordered to be confiscated, the choice will be for the importer to redeem the goods on payment of fine or to leave the goods in the hands of the Central Government and not opt to exercise the option to redeem the goods. While exercising the option to redeem the goods, the owner has to pay the differential duty in addition to the fine in lieu of confiscation in terms of Section 125 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plit up while assessing the goods to import duty. However, Customs authorities were not barred from causing necessary investigations and enquiries to determine whether this split up was correct or not. The Directorate of Revenue Intelligence conducted searches in February, 1991 in the premises connected with the importer and seized the computer software which is the subject of this SCN. It therefore follows that on the basis of enquires conducted for which information was supplied by the importer himself to the Customs authorities, the Department arrived at a tentative conclusion that the split up of the value in the proportion of 60:40 was not correct. The Deptt therefore in order to gather the necessary evidence regarding the aspect of sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the accompanying manual, the total value was still available to the Deptt. and they could have clubbed the two values and assessed the goods as alleged in the show cause notice and has been done in the Collector s impugned order on the basis of the declaration of the Appellants themselves. In this view it will be totally illegal and unjust to confiscate the goods and demand differential duty. Collector s, reasoning to ignore Section 28 and demand duty on the basis of provisions under Section 125 of the Customs Act is not correct in law. A bare reading of Section 28 indicates that duty has to be recovered under Section 28 within the period of limitation laid down if there has been a short levy. It is the case of the Revenue that there h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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