TMI Blog2013 (11) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... the elements of Section 28 of Customs Act, 1962 with a premeditated mind to cause evasion - Prima facie, it is not apparent from the record as to willful evasion – the requirement of pre-deposits waived till the disposal – There was no physical import of magnetic media or optical media with software recorded on it - ASSOCIATED CEMENT COMPANIES LTD. Versus CC [2001 (1) TMI 248 - Supreme court of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion System (HAS). It was further submitted that the process of use of this customized software during downloading process was informed to the department through various correspondences made in 2004-2007. For this reason, in para 32 of the adjudication order, ld. Adjudicating authority made a clear finding that there was no suppression of information. The appellant was entitled to excise exemption. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity that mis-statement was made by appellant. Law requires that there should be presence of any of the elements of Section 28 of Customs Act, 1962 with a premeditated mind to cause evasion. Prima facie, it is not apparent from the record as to willful evasion. Accordingly matter shall be thread bare examined by elaborate hearing. Therefore, the stay application is allowed and pre-deposit is waive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act, 1975 is discs, tapes, solid-state non-volatile storage devices, Smart Cards and other media for the recording of sound or other phenomena, whether or not recorded covered under heading no.8523 of the Customs Tariff. Software downloaded through internet is not tangible goods and hence is not taxable at all, as there is no import of media for recording like discs, tapes, etc. Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, as in an e-mail transfer of information, no media or a movable article is crossing the informational boundaries and no movement of moveable property is involved and transfer of information, ideas or knowledge on e-mail would not be import of goods under the Customs Act. I also find that the show cause notice does not even mention the Tariff heading under which the software downloaded through i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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