TMI Blog2013 (10) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... not come to the help of the applicants - The case laws cited by the counsel relates to software for ordinary computers and not for telecom equipment where hardware and software are developed and supplied by the same supplier in a pre-loaded manner - Thus the nature of the equipment vis-a vis the software is prima facie similar to that in that in the case of Anjaleem Enterprises Pvt. Ltd (2006 (1) TMI 271 - SUPREME COURT OF INDIA) and Bharti Airtel Ltd. (2012 (7) TMI 233 - CESTAT, BANGALORE) where the cases stand decided in favor of Revenue. In view of the Apex Court decision in the case of Anjaleem Enterprises which is not considered in the case of Vodofone Essar Digilink (2008 (10) TMI 173 - CESTAT, MUMBAI) we do not want to go by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-2006 (S. No. 27). 3. The department received information that the appellant-company had artificially split the contracted value of equipment into value of hardware and value of software and availed exemption on the value declared to be that of software. Further, the applicant had imported the following software namely (i) Additional application software valued at Rs. 15,57,71,816/- and (ii) CTU and Ethernet interface application software and Network Management Software NMS for DXC CMUX valued at Rs. 66,08,319/- for which they had claimed exemption under notification 06/06-CE (S. No. 27) which as available only to custom designed software. Department was of the view that these software were canned software sold to any customer and not sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BPL Telecom Ltd. Vs CC Cochin 2002 (142) ELT 258 (Tri.-Bang.) ii. PSI Data Systems Ltd. Vs CCE 1997 (89) ELT 3 (SC) iii. CCE Pondicherry Vs Acer India Ltd. 2004 (172) ELT 289 (SC) iv. CCE Bangalore Vs Asea Brown Boveri Ltd. 2005 (190) ELT 455 (Tri.-Bang) v. Bharti Airtel Ltd. Ors. Vs CC Bangalore- 2012-TIOL-746-CESTAT-BANG. 7. The Ld. Advocate also relies on the decision of Mumbai Bench of Tribunal in the case of Vodafone Essar Gujarat Ltd Vs.CC-2009 (237) ELT 458 (Tri-Mum). 8. The Ld. Advocate relies on chapter note 6 of Chapter 85 of the Customs Tariff reading as under: 6. Records, tapes and other media of heading 8523 or 8524 remain classified in those headings, when they are presented with the apparatus for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are without any basis. The decisions in the cases of computer and software for using computer are not applicable to telecom equipment and its software. Normally computers are manufactured by manufacturers other than persons developing software for using computer. For example Hewlett Packard is a manufacturer of computer and Microsoft Corporation is a developer of software for using computers. There are other software developers like Redhat which also has developed software which will enable use of computers. In such situation there is no case for considering software to be integral part of hardware. In the case of telecom equipment the software is developed by the same manufacturer as the manufacturer of the hardware and the software are so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of software. Only at the stage of issuing purchase order and the invoice the value is split. The case of Revenue is that the equipment as presented were loaded with software and the separate import of the software was a sham. The fact that Revenue did not notice it at the time of clearance of the import of the equipment may not come to the help of the applicants. 16. The case laws cited by the counsel and listed in para 4 relates to software for ordinary computers and not for telecom equipment where hardware and software are developed and supplied by the same supplier in a pre-loaded manner. The cases quoted in para 5 is on the question of retrospective applicability of an explanation added in notification 11/97-Cus (S. No.173) and thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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