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2019 (9) TMI 289

..... d later - section 28 of Customs Act, 1962 - denial of N/N. 12/2012-CE dated 17th March 2012 (at serial no. 266) - Imposition of penalties u/s 112(a) or section 114A of the Customs Act, 1962 - retraction of statement of deponent. HELD THAT:- The value declared itself is not in doubt. The statement recorded from Shri Aditya Bhuwania is undoubtedly inculpatory but not against the claim of having been retracted which, even if not done before the authority which recorded the statement, was, nevertheless, placed later before the adjudicating authority, there can be no doubt that the contents of the said statement is not acceptable without some corroboration. It is clear that the adjudicating authority, or the investigating officers, were not privy to the contents of either the export or import goods and rely heavily on the declarations in the documents and the purported confessional statement. Though doubts are sought to be cast on the retraction, it may not be easily discardable. The acceptance of the shipping bills and the conclusion that the bills of entry were mirror images fortifies the claim of the appellant for eligibility to drawback under section 74 of the Customs Act, 1962. In .....

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..... eged to have evaded duties of custom on import of recorded disc by mis-declaring the same as windows XPE embedded (customized) software licence and claiming classification under heading no. 4907 of the First Schedule to Customs Tariff Act, 1975. The case of Revenue is that these goods, declared to be valued at US $ 57, had, prior to September 2012, been classified under heading 8524 and 8523 of the First Schedule to Customs Tarff Act, 1975 but for the period between October 2012 and July 2013 the heading was altered owing to the imposition of additional duties on goods imported under heading 8523 and 8524 of the First Schedule to the Customs Tarff Act, 1975. According to the appellant, stickers and license were imported for export to their customers as permission for the use of customized software developed from the XPE embedded software imported on the earlier occasion. According to them, software is customized to render it suitable for specific end use such as automated teller machines etc and that, on receiving payments from these customers, the authorization for downloading of the customized software would be provided. To enable this to be put to use, the stickers and licence u .....

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..... -to-consignment comparison of the imported goods with exported goods, of identical weight and identical description save for the inclusion of compact disc in the shipping bill, is a clear indicator that the discs were also being imported though the packages were claimed to be consisting only of licences or sticker licences. Moreover, the presumption for alteration of the heading and classification after the issue of notification no. 12/2012-CE dated 17th March 2012 was also concluded to be an indicator of incapability of description as customized software. According to Learned Counsel, it was physically impossible to contain the weight of as many CDs as declared in the various shipping bills within the weight of the imported packages. It is her contention that, at best, the export consignment could contain one disc as back up in the event of failure to receive the link for downloading of the customized software. She also informs that the customization in the present instance cannot be questioned because components of the entire software that is already in their possession are isolated and made specific to the respective clients. According to her, with the exemption accorded by noti .....

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..... tion 74 of the Customs Act, 1962. In these circumstances, the motive distances itself from the method and without motive there can be no offence. Learned Counsel places reliance on the decision of the Hon ble High Court of Gujarat in Commissioner v. Fact Paper Mill Ltd [2015 (322) ELT 283 (Guj.)] to highlight the failure of the adjudicating authority in dealing with the retraction even if not in compliance with the various judicial rulings on the subject; that there was a retraction should suffice for the adjudicating authority to render a ruling on its acceptance or otherwise. Learned Authorised Representative relies on the decision of the Hon ble Supreme Court in KI Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin [1997 (90) ELT 241 (SC)], in which the rival contentions were substantially the same, and which has held that 25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any .....

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