TMI Blog2013 (8) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... er was beyond the scope of the show-cause notice - Hardware and software to be assessed independently on merits whether they imported together or separately - Commissioner had gone beyond the scope of show-cause notice by holding that the appellants have inflated the value of software – decided in favour of assessee. - C/305, 306/10-Mum - A/1087-1088/13/CSTB/C-I - Dated:- 9-5-2013 - Ashok Jindal and S K Gaule, JJ. For the Appellant : Shri L P Asthana, Adv. For the Respondent : Shri K M Mondal, Spl. Counsel PER: Ashok Jindal The appellants have challenged the impugned order dated 29.12.2009 by way of these appeals. 2. The brief facts of the case are that the appellant, M/s. Himachal Futuristic Communication Ltd., (HF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,314/- and in respect of 20000 pieces of WLL loader software imported during July,2001 to October, 2001 vide four Bills of Entry through Air Cargo Complex, Mumbai declaring an aggregate value of ₹ 5,89,75,394/-. Proposition in the show-cause notice was to club these two values together and demand differential duty amounting to ₹ 2,28,44,708/- along with interest thereon apart from proposal to confiscate the goods, imposition of penalties on the appellant firm, its President and Sr. Vice President. A third show-cause dated 28.05.2006 was issued by the Commissioner of Customs, Nhava Sheva in respect of 1,00,750 pieces of FWT imported through JNPT, Nhava Sheva under 16 bills of Entry during the period October 2001 to February, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that the actual value of the software imported is only USD 95032 as evidenced from the agreement dated 16.04.2001 entered into between the appellant and M/s Hynix Semiconductor, Korea and not ₹ 37, 49,61,132/- as declared by them in the Bills of Entry for the import of WLL software. Accordingly, he confirmed a duty demand of ₹ 14,34,00,490/- under Section 28 of the Customs Act, 1962 along with interest thereon under Section 28AB ibid. He also imposed equivalent penalty on the appellant under Section 114A and a penalty of ₹ 25,00,000/- on Shri Manjit Singh, President of the appellant firm. Aggrieved by the said order the appellants are before us. 3. Heard both sides. 4. Shri L.P. Asthana, learned Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterated the findings of the impugned order. He also drew our attention to the paragraph 1 of the show-cause notice wherein it is recorded as an information gathered that the value of the Fixed Wireless Terminal/Telephone (FWT)was being split artificially into value of the equipment hardware and software to avail benefit of nil rate of duty on the value of CD ROM/software in terms of Notification 17/2001 Sl. No. 267/285. Therefore, the allegation against the appellant is that they have over-valued the transaction value of software in the Bills of Entry made before us. He further submitted that as argued by the learned Advocate that the learned Commissioner has taken wrong consideration of the fact that the value shown in the agreement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. Vice President (Commercial) of HFCL and Shri Manjit Sing, President of HFCL are hereby called upon to show cause to the Commissioner of Customs (Import General), New Custom House, Near IGI Airport, New Delhi within 15 days of receipt of this show-cause notices as to why: (i) The declared transaction value of FWT Module not be rejected and the value of software WLL loader should not be treated as its parts and should not be taken with the value of hardware and resultant assessable value be assessed under CTH 8517 and differential duty amounting to ₹ 3,48,21,488/- should not confirmed and recovered in terms of proviso to Section 28 (1) of the Customs Act, 1962. (ii) interest under Section 28AB of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice is that the value of software imported by the appellant is to be included in the value of the hardware for assessment of duty. The said question has been answered by the learned Commissioner in the impugned order by relying on the judgement of the Hon'ble Apex Court in the case of PSI Data System (supra) and ACER India Ltd. (supra) where he has held that hardware and software are to be assessed independently on merits whether they imported together or separately. The learned Commissioner has gone beyond the scope of show-cause notice by holding that the appellants have inflated the value of software, the said allegation is not sustainable. Further, on the allegation of inflation of the value of software is also not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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