2008 (10) TMI 442

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....tel Ltd. v. CC, Bangalore OIO No. 06/2008 Dt: 30-4-2008 by CC, Bangalore Duty : Rs. 2,06,44,04,030/- (Rs. 28,67,32,517 + Rs. 53,35,28,802 + Rs. 120,73,95,283 + Rs. 3,67,47,428 /-) Penalty : Rs. 2,06,44,04,030/- 2. C/574/2008 M/s. Bharti Hexacom Ltd. v. CC, Bangalore -do- Duty : Rs. 9,10,94,185/- (Rs. 5,80,10,601 + Rs. 3,30,83,584/-) Penalty : Rs. 9,10,94,185/- 3. C/575/2008 M/s. Ericsson India ( P) Ltd. v. CC, Bangalore -do- Penalty : Rs. 10,00,00,000/- 2. S/Shri V. Lakshmikumaran and G. Shiva Dass, the learned Advocates, appeared on behalf of the appellants and Shri P.R.V. Ramanan, the learned Special Counsel, appeared for Revenue. 3. We heard both sides. 4. The appellants are leading service providers for GSM....

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....lready pre-loaded by the supplier at their factory and as a result, the software imported by the appellants separately in CDs/ODs/Floppies by claiming assessment under Chapter heading 85.24 at NIL rate of duty was only with a view to apportion a part of the hardware value to software in order to evade payment of Customs duty on that part of the value claimed to represent the value of the software imported. 5. Shri Lakshmikumaran made the following submissions :- (i)      This issue has been settled in favour of the appellants by the latest decision of the Hon'ble Tribunal, Mumbai, in the case of M/s. Vodafone Essar Gujarat Ltd. v CC (Imports), Mumbai vide Final Order  No. A/531/08/CSTB/C-II, dated 8-10-2....

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....umbai v. Amar Bitumen & Allied Products Pvt. Ltd. - 2006 (202) E.L.T. 213 (S.C.) (c)      CCE v. Bigen Industries Ltd. - 2006 (197) E.L.T. 305 (S.C.) (d)     CCE v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) (e)      Indian Oil Corporation Ltd. v. CCE - 2006 (202) E.L.T. 37 (S.C.) (f)      M/s. Jyothy Laboratories Ltd. v. CCE - 2007 (78) RLT 276 (vi)   Reliance was also placed on the technical opinion of Shri K.S. Ramanujam, a leading expert in the field of GSM Technology and Faculty Member of the Birla Institute of Technology and Sciences at Pilani in Rajasthan. In terms of the above opinion, the software cannot be cons....

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....uipment. 5.2 In view of the above, he stated that prima facie, the appellants have strong case in their favour. 6. The learned Special counsel stated that the facts of the Vodafone case and those of the present appeals are not exactly identical. It was urged that the Hon'ble Mumbai Bench has not given due consideration to some of the issues which are germane to the present appeals. 6.1 He stated that DRI had information that the subject equipment had embedded software and that the value of the equipment was split into hardware and software to undervalue the hardware. It was stated that purported import of software was a dummy transaction. This has been revealed by the elaborate investigations of the DRI. 6.2 He has a....