TaxTMI 
TaxTMI 
2003 (6) TMI 265
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....on of records, but excluding products of Chapter 37." 2. The Commissioner has noted that Invoice No. 6619289, dated 19-1-2000 covering value of springware software relating to the PPCBs of the Bill of Entry No. 194258, dated 1-2-2000 and the Invoice No. 669248, dated 21-3-2000 covering value of springware software related to PPCBs imported under Bill of Entry Nos. 197878, dated 17-2-2000 and 197879, dated 17-2-2000 is totally attributable to the voice boards and fax boards. The Commissioner has ordered for confiscation of the goods under the respective Bills of Entry stated in the order but has granted release of the same on payment of a fine of Rs. 3 lakhs. A further duty amount of Rs. 26,73,161/- has been confirmed and Rs. 5 lakhs has been adjusted which has been paid by the appellants. Appellants have been imposed a further penalty of Rs. 30,87,209/- under Section 114A of the Customs Act, 1962. 3. We have heard ld. Counsel Shri A.K. Jain for the appellants and Smt. R. Bhagya Devi, ld. SDR for the respondent-revenue. 4. Ld. Counsel has filed the written prepositions and the said written propositions are noted herein below :- (A) ....
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....; 1988 (33) E.L.T. 699 (Tri. - DB) in the case of Life Line Systems Pvt. Ltd. v. CC, New Delhi (Page 38). (E) After finally assessing 41 Bill of Entries under Section 47 the Customs department can upset the same only by resorting Section 129D. 1. 2001 (130) E.L.T. 54 (Tri. - LB) in the case of Collector of Customs, Cochin v. Arvind Export Pvt. Ltd. (Page 40). 2. 1997 (93) E.L.T. 21 (Mad. - DB) in the case of Best & Cromptron Engineering v. Commissioner of Customs, Madras (Page 44). (F) If splitting of value was done in accordance will established practice of the department and when the department itself did not ask any further information in the form of product manual or detailed write up before doing assessment, extended limitation would not be invocable. 1. 2000 (117) E.L.T. 252 (Tri.) in the case of Tata Infotech Ltd. v. Commissioner of Customs, Mumbai/New Delhi (Page 46). 2. 2000 (68) ECC 74 (Tri.) in the case of....
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....SCN and in the Order-in-Original there is a reference of some statement of Anil S. Sabnis but this was never given to the appellant even when pointed out in reply to SCN. 5. Elaborating his argument on the basis of above legal propositions propounded, the learned Counsel submitted that the issue is fully covered by the judgment of the Apex Court rendered in the case of Sprint RPG India Ltd. v. CC, Delhi, 2000 (116) E.L.T. 6 (S.C.). The Counsel also referred to the technical opinion given by the National Informatics Centre (NIC), dated 10-3-2003; clarification given by Bharat Sanchar Nigam Ltd. (BSNL), dated 27-2-2003 and the one given by South Central Railways, dated 4-3-2000. On the basis of these three opinions, ld. Counsel submitted that the classification which had been adopted by them in the Bills of Entry is a correct one and, therefore, the proceedings initiated by the department on the alleged misdeclaration is totally incorrect and requires to be set aside. He pointed out that even in terms of Board's circular, the department was bound to have obtained the technical clarification from NIC which they have failed to do so. He submitted that even otherwise the opinion....
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.... of Panama Chemicals Works v. UOI (supra). He also referred to all the technical opinion and submitted that they are required to be accepted. He also submitted that page 1304 of the Explanatory Notes also supports his case. He pointed out that Heading 85.17 refers to "Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunication apparatus for carrier-current line systems or for digital line systems; videophones" which cannot be adopted for classifying the items under import. He also submitted that the extended period is not invocable as it was the practice of the department right through and even now to classify the hardware and software separately. He referred to the following judgments on time-bar :- (i) Tata Infotech Ltd. v. CC, Mumbai/New Delhi - 2000 (117) E.L.T. 252. (ii) Kirloskar Electric Co. Ltd. v. CCE, Bangalore - 2000 (68) ECC 74. (iii) CCE, Madras v. Aradhi Associates - 2001 (129) E.L.T. 120 (T). He also referred to the correspondence of the appellants with the supplier who have clearly stated that the item cannot ....
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....ation on the valuation part and hence the question of denying the benefit of notification or re-classifying the product on misreading of the catalogue by the Commissioner does not arise. He, further, submitted that the catalogue was not relied upon in the show cause notice and hence, it cannot be the basis for demanding duty. 7. Ld. SDR read out the order and sought for confirmation of the same. 8. We have carefully considered the submissions made by both sides and have perused the order. It is seen that the appellants had filed the Bill of Entry in February, 2000 on the basis of entire material and other details claiming the benefit of Notification No. 20/99 under Sl. No. 231 at Nil rate of duty under the Tariff Heading 8473.30 as parts and accessories of the machine of Heading 84.71 in respect of computer software, Dialogic System Software, the claim was under Heading 8524.99 as "Other" under the heading "Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records. The department has assessed the same and had cleared for home consumption except for a few of the software which....
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....ering College, Warangal which is at page 89 is reproduced herein below :- No. ECE/2002/0288 Date : 21-1-2002 To Bay Talkitec (P) Ltd. No. 42, Sardar Patel Road Opp. Raj Bhavan Telephone Exchange Guindy, Chennai - 600 032 Sir,         Sub. : Clarification on Dialogic Card. With reference to the above, I have gone through the data sheets pertaining to Dialogic Card and also the Software CD of Dialogic Corporation. On going through the same, I conclude that the Dialogic Board does not have any Non-Volatile storage devices such as EPROMs or PROMs on it. Hence, there is no way that the firmware can be stored on the board. However, the board is having Read Write Memory (RAM) on it. Due to this reason, it cannot store software, whenever the power is switched off. It is confirmed that the Firmware has t....
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.... Can the Dialogic Voice/Fax cards work without a PC? Ans : As these cards are ADD ON cards and taking power from the PC, these cards cannot work without a PC. 2. Does the Dialogic Voice/Fax Boards come with software embedded on to the board itself? Ans : The Dialogic software comes on CDs and this gets downloaded on to the RAM of the card on an appropriate command. Since this card does not have a permanent storage device the software cannot be embedded on to the card. 3. Can the Dialogic Voice/Fax Boards work without the software (Springware) given in the CDs? Ans : No. The "Springware" Software given in the CD is required to be downloaded during the use. 4. Does the Springware software gets downloaded when the PC is Powered ON and appropriate command given? Ans : Yes, the software gets downloaded when the PC is powered ON either from CD or Hard disk when appropriate command is given. 5. Once the Dialogic board is powered off by switching o....
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....e. Each time the software gets downloaded when the board is powered ON. 12. We also extract the opinion of South Central Railways obtained by appellants as follows :- TO WHOMSOEVER IT MAY CONCERN This is to clarify on the technical specification of Dialogic Voice/Fax cards. To the best of my knowledge, the information given below is correct. 1. Can the Dialogic Voice/Fax Boards work without a PC? No. The Dialogic/Voice Fax boards cannot work without PC. Dialogic Voice/Fax boards are Add on cards for PC. The power supply for these boards is derived only from the PC and the interface connector is a PC bus connector. The card needs to be plugged into the PC for working. 2. Does the Dialogic Voice /Fax boards come with software embedded on to the board itself? The software is supplied on the CDs. Once the card is plugged into the PC and software is installed from the CD, the software gets downloaded on to the RAM of the board, through a command. As the board....
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.... been approved by the Apex Court, the Tribunal has clearly held that storage device with software recorded thereupon is classifiable under Heading 85.24 of the Customs Tariff Act, 1975 and eligible for the benefit of Notification No. 23/98. The Tribunal have ruled out the classification as parts under 84.71. 15. Similar view was expressed by the Tribunal in the case of BPL Telecom Ltd. v. CC, Cochin (supra), wherein the very item came up for classification and the Tribunal upheld the classification as claimed by the party. 16. In the case of Jindal Aluminium Ltd. v. CC, Bangalore (supra), the Tribunal rejected the claim of the department for classifying the parts of data processing unit as part of machines incorporating or working in conjunction with an automatic data processing machine and held that they are not to be classified under Heading 84.71. 17. The judgment rendered in CC, New Delhi v. HCL Hewlett Packard (supra) pertaining to the classification of Sound blaster cards work as accessories to computer under chapter sub-heading 8473.30 of CTA, 1975 and the finding is that it is not covered under sub-heading 8519.99. This citation also applies to the f....