TMI Blog2018 (5) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... , A.R for the Respondent. PER: M.V. RAVINDRAN These two appeals are directed against order-in-original No. 05/2009-Adjn-Cus dated 28/01/2009. Appeal No C/260/2009 is filed by the assessee for confirmation of differential duty with interest and penalty imposed while Appeal No. C/366/2009 is filed by the Revenue for non-imposition of equivalent penalty to the tune of duty and interest put together. Since both the appeals are challenging the very same order-in-original, they are being disposed of by a common order. 2. The relevant facts that arise for consideration, after filtering out unnecessary details are: assessee herein imported Microwave SDH radio Software CD ROMs, Microware SDH Radio Hardware Microwave communication equipment-DMC Non-protected, Microwave communication equipment Altium protected space diversity STM-1, Altium SDH radio software CD ROMs. They filed bills of entry for discharge of duty liability in respect of bills of entry for the equipment and CD ROMs of software and claimed the benefit of Notification No. 21/2002 classifying software as falling under Chapter 85.24 and exempted from payment of duty. Assistant Commissioner of Customs and Air-cargo c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the value of software is in fact integrally related to the equipment imported by the appellant. He would submit that the findings of the adjudicating authority are reiterated and needs to be upheld. 5. On a careful consideration of the submissions made, we find that the short point to be decided in this case is whether or not value of the software is liable to be included in the assessable value of equipment imported by the appellant. 6. It is undisputed that appellant had filed bills of entry for clearance of radio equipment imported by them. The said bills of entry indicate value for equipment separately and value of software separately; appellant claimed exemption from duty on the software as per Notification No 21/2002-Cus claiming the classification of software under Chapter Heading 8524. On this factual matrix we find that learned counsel was correct in stating before the Bench that the value of the software imported along with equipment need not be included. He relied upon various decisions cited herein above. 7. In the case of Vodafone Essar Gujarat Ltd (supra) the issue which came to be decided in favour of the assessee was whether value of the software needs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered by Note 6 to Chapter 85, which relates to records and other media presented with the apparatus for which they are meant unlike Note 5E to Chapter 84 which refers to machines incorporating or working in conjunction with automatic data processing machines. We note that importing software in CDs separately besides being preloaded on hardware is not something done unusual and is a trade practice and no evidence has been cited by the revenue to show that this is not a trade practice. The statements of the various persons concerned with the installation and commissioning of the equipments does bring out that they were required to check if the appropriate software has been loaded on the various equipments and in case it was not so found, they were required to be again loaded. Therefore the fact that the software imported separately was never used is of no consequence as it was meant for use in emergency only which emergency never arose. Even the revenue, in its submissions, has stated that such a plea was of doubtful validity, meaning there by that it cannot be ruled out. Another plea taken by the revenue is that the software in the present case was a firmware, distinct from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso falling under Chapter Heading 8524 but only excludes it from the purview of exemption notification. Data processing machines may be general purpose and special purpose. While a general purpose data processing machine is classifiable under Chapter Heading 84.71 the special purpose data processing machine incorporated or acting in conjunction with a machine is classified on merits by virtue of Note 5E to Chapter 84. Further, special purpose data processing machines do not cease to be data processing machines merely because by virtue of special rules of classification embodied for such machines in Note 5E to Chapter 84, they are classified under headings other than 8471. The Id. counsel for the revenue has made a distinction between a software which is integrated and a software which is presented with . We, however, feel that there is no such distinction as software which was preloaded in the hardware in the general purpose computer was also equated as presented with and classified as a software under Chapter Heading 8524 and this is the manner in which software under dispute has also been loaded. In both cases, it gets integrated. It is another matter that in case of telecom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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