TMI Blog2001 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with the terms of the Notification 339/85, dated 21-11-85. It was alleged that the actual software exported was worth only Rs. 6.9 crores. It was alleged that their claim of export of expertise in the form of consultancy charges amounting to Rs. 7.44 crores could not be taken as export earnings so as to qualify for the benefit of the said notification. It was alleged that such earnings were not authenticated by the Customs. 3. M/s. TIL filed their reply. It was claimed that consultancy export was also to be taken into account when assessing the value of exports towards fulfilment of export obligation under the said notification. 4. The Commissioner passed Order upholding the charges made in the Show Cause Notice. He ordered confiscation of the machinery and equipment imported free of duty totally valued Rs. 2,08,75,877/- but permitted redemption on payment of fine of Rs. 25 lacs. He confirmed duty amounting to Rs. 2,93,60,904/- but did not impose any penalty on M/s. TIL. 5. The appeal filed by M/s. TIL against this Order was disposed of by the Tribunal vide Final Order No. C/357/95/C-II. The Tribunal noticed a later Notification 133/94-Cus. which not only repealed N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority had to look into the details of the contracts. He observed that what was required from the noticee was to file contracts and not to show annexure to the public notice. He admitted that the 118 contracts had been filed but he doubted that in other cases the profiles could take place of contracts. On scrutiny of the contracts he observed that none of the contracts showed that they pertained to their NEPZ Unit. He observed that some contracts were signed by the company secretary who was located in Mumbai. He observed that some of the contracts were on letter-heads of the units situated in Bombay. He observed that some of the contracts were unsigned. 9. He referred to the affidavit filed by the Vice President of M/s. TIL to the effect that the imported equipment and machinery were installed in NEPZ only. He held that the affidavit was not supported by any evidence. He did not accept the contentions affirmed in the affidavit. He observed that M/s. TIL has failed to establish a clear co-relation between the contracts and the systems installed. As regards the quantum of earnings also the Commissioner observed that he was not convinced. He observed that in spit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the contracts were not available. Project Profiles have been filed. The profile itself refers to the contract number and also gives a brief outline of the Project detailing the equipment used in the processing. This has been signed by the Vice President. An Affidavit of the Vice President is also on record. In the Affidavit, the components parts of the systems which are installed in the NEPZ are listed; namely, 1. 2200 Computer System 2. U6000UNIX Computer System 3. Micro (A Series) 4. Personal Computer 5. Mapper Software 6. LINC Software 16. It is averred that these are installed only in NEPZ and nowhere else. It is averred that in 85 contracts systems were utilized in the production of software, etc. 17. The Commissioner has dismissed the affidavit stating that no supporting evidence has been adduced. An affidavit is a statement or a declaration by a person where he stands by the truth of the contents of the declaration, and which the deponent is able to of his own knowledge to prove. In a number of circumstances, affidavits become evidence in the eyes of law. In fact, the statements m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his was against the obligation cast upon the assessee of earning Rs. 13.29 Crores. 25. The contentions of the affidavit are further supported by the certificate of the Charted Accountants. In this certificate the earnings made by M/s. TIL during the period 1993-94 to 1998-99 have been shown location wise. During this period the Total Gross Export Income of the NEPZ is Rs. 166 Crores. 26. As regard the Consultancy services rendered also, we find evidence of earnings on this count. One of the contract on record is No. 951018 effective from 4-7-95 and another contract with the same buyer is titled as 95109, dt. 13-8-95. Such agreements are elaborate, spelling out amount of compensation and other details. Under this contract consultancy was provided to M/s. UNISYS Corpn. in USA for a total cost of US$ 41717. This contract has been signed by the Co. Secretary of TUL (as it then was ) and also by the official of UNISYS Corpn. The location of the project is shown as NEPZ India. A number of such contracts are on record as also a number of subsidiary contracts or communications where the initial consultancy charges were later increased. These documents called change requisition refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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