TMI Blog2004 (10) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... he CD is used to reload the software in case of a crash of the computer or in case the software gets corrupted; that in Bill of Entry dated 1-9-2003, they indicated the configuration of the Note book and declared the assessable value as US$ 775.02 under Sub-heading 847130 10 of the First Schedule to the Customs Tariff Act; that since Microsoft disc, they separately indicated the software and declared its assessable value as US$ 146. He, further, mentioned that the Assistant Commissioner, under Order-in-Original No. 7/2003 dated 23-10-2003, classified the Note book along with the Hard Disc Drive with software under sub-heading 8471.3010 and assessed to duty accordingly, confiscated the impugned with an option to redeem the same on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with software such as discs floppies and CD Roms. But that is not to say that these are a part of the computer or to hold that, if these are sold along with the computer, their value must form part of the assessable value of the computer for the purpose of excise duty." He contended that this decision was rendered by the Apex Court de hors the existence of Note 6 to Chapter 85 even though the said Note was referred to in the decision; that Note 6 to Chapter 85 clearly mandates that records, tapes and other media of Heading 85.23 or 85.24 remain classified in these Headings when presented with the apparatus for which they are intended; that in the case of Barber Ship Management (I) Pvt. Ltd. v. CC ACC, Mumbai [2000 (117) E.L.T. 456 (T)], th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icherry v. Acer India Ltd. [2004 (172) E.L.T. 289 (S.C.) = 2004 TIOL 81-SC CX LB]. Finally, he contended that since the Chapter Note read with the HSN Explanatory Notes make it clear that software whether recorded on CDs or the media on which the software is recorded would be classified under sub-heading 8524.91, the appropriate values have to be mentioned separately; that confiscation under Section 111(m) of the Customs Act is tenable only when the value declared does not correspond with the entry made under the Act; that as in the present matter, the Revenue has not disputed the correctness of the value and has disputed only separate classification of software, provisions of Section 111(m) are not applicable; that the penalty imposed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not affected the classification of "Records, tapes and other media of Heading 85.23 or 85.24". They remain to be classified in those Headings i.e. 85.23 or 85.24 when presented with the apparatus for which they are intended. The change brought out by the amendment is that after amendment they should be presented with the apparatus for which they are intended. In case the media is presented with articles other than the apparatus for which they are intended, Note 6 will have no application. General Explanatory Notes of HSN for Chapter 85 gives the following example for the said situation - "materials for use in instructing children in mathematics consisting of an instruction video cassette, an instructional work book and small calculating ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 85.24" and not to the Headings of the equipment/apparatus. Therefore, the question of software being classified under Headings/sub-headings applicable to equipment/apparatus for which it is intended does not arise. A comparison of the revised Chapter Note 6 with the Chapter Note 6 as it stood prior to the amendment would reveal that the objective of the amendment was to restrict the coverage of software contained in media under CTH 85.23 or 85.24 only to such of those software which is presented along with the apparatus for which it is intended. Prior to the amendment, regardless of whether or not such software was intended for the apparatus along with which it was presented, the classification remained under CTH 85.23 or 85.24." This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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