TaxTMI 
TaxTMI 
TaxTMI 
2011 (4) TMI 719
X X X X Extracts X X X X
X X X X Extracts X X X X
....owards meeting the expenses / profit. The software in CD form during March to September 2006 was imported through courier and courier bills of entry were filed. The Customs duty was paid by the courier on the declared value. Subsequent to September 2006, the appellants imported CDs containing SAP ERP software and paid customs duty on the value of licence fee remitted to SAO-AG. During the course of investigations, authorities of DRI, Bangalore held the view that no duty has been paid for the period March to September 2006. The appellants thereafter paid duty to the extent of the 55% value sent to the principals. The DRI opined that the duty is payable for the entire value of the software. The appellants thereafter, paid a sum of Rs.5,21,98,021/- vide TR 6 challan dated 15.11.2008 relating to CDs imported by their customers. The appellants have alleged that the DRI authorities are independently investigating their customers also and demanding duty with interest from their customers, for the CDs which the appellants have already paid duty. The appellants contention is that the duty could not be recovered twice, once from them and also from their customers. Thus, the appellants filed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hem as importers and the appellant is only held to be liable for penalty under provisions of Customs Act. It is his submission that an amount of penalty cannot be pre-determined and hence, the amount of Rs.5.22 crores paid by the appellant under protest needs to be refunded back to them. He would rely upon the following decisions for this proposition. (i) Vodafone Essar South Ltd. Vs. UOI 2009 (237) ELT 35 (Bom.) (ii) Ganesh Enterprises Vs. CCE, Ahmedabad - 2009 (240) ELT 106 (Tri.-Ahmd.) (affirmed by Hon ble High Court of Gujarat as reported at 2010 (255) ELT A118 (iii) Gee Kay International Vs.UOI - 2008 (230) ELT 590 (P & H) (iv) Raghu Exports Vs. UOI - 2008 (229) ELT 655 (P & H) It is his submission that an amount which is not due from the appellant nor is liable to be recovered from the appellant as duty, as the appellant is not an importer, the said amount should not be retained by the authorities and should be refunded back to them. It is also his submission that the appellants are also entitled to interest for the delayed refund, since the refund claim was filed on 12.5.2009 and the said refund is not sanctioned till date. He would rely upon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e penalties on the current appellant in the very same show cause notice. It is also his submission that the refund claim filed by the appellant is premature since the issue of correct determination of assessable value and the actual duty liability is yet to be decided by the Adjudicating Authority. The assessee has challenged the inclusion of sub license fee in the assessable value for the purpose determination of Customs duty, which has to be ascertained and determined by the Adjudicating Authority. It is also his submission that the appellant s claim that the department has collected the customs duty on the same transaction thrice is incorrect. It is his submission that since the transaction value declared at the time of import was not correct, on investigation the duty has been quantified and the customs duty short paid was ascertained and process was initiated for its recovery by the investigating authorities. It is his submission that the appellant s tried to use offer of pre-deposit of the amounts of Rs.5.22 crores to get the investigations terminated premature for their own benefit and the amount paid by them and deposited by them towards differential duty is amount calculat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the appellant is the importer as it is on record that the revenue authorities have issued show cause notices to different customers of the appellant. The sample show cause notice dated 26.8.2009 issued to M/s. Reliance Communications Ltd. in paragraph 13.2 clearly indicates as under: The total deposit of Rs.1,16,61,220/- (Rs.88,64,062/- towards duty of plus Rs.27,97,158/- towards interest) made by RCL vide RT-6 challan dated 24.12.2008 needs to be appropriated against the differential duty liability of Rs.88,63,845/- plus interest of Rs.27,97,158/- which are demandable / chargeable as mentioned supra. In the very same show cause notice, it is also indicated in paragraph 14.7 as under: The total amount of Rs.9,61,98,021/- deposited by SAP India (vide RT-6 Challan dated 31.01.2008 - Rs.1,20,00,000/- TR-6 Challan dated 25.2.2008 - Rs.3,20,00,000/- TR-6 challan dated 15.11.2008 - Rs.5,21,98,021/- ) needs to be appropriated towards the penalty proposed above against SAP India. In the show cause notice dated 31.8.2009 issued to M/s. Raymond Ltd. in paragraph 13.2 indicates as under : The total deposit of Rs.70,19,299/- made by Raymond Ltd. vid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lex, Varayana, District Jalandhar, in the name of the petitioner, which is free from any encumbrances, shall be kept as security to meet any further demand of revenue. The enquiry/investigation initiated against the petitioner by the Directorate of Revenue Intelligence (DRI) shall be finalized expeditiously but not beyond the period of one year from today. It is made clear that this order is being passed without prejudice to the rights and claims of either of the parties. In an identical situation in the case of Ganesh Enterprises (supra), the coordinate bench of the Tribunal has held as under: M/s. Ganesh Enterprises is a manufacturer of Cellulose powder and were availing exemption under SSI Notification. The Central Excise officers visited the unit in August, 2007 and seized records of M/s. Ganesh Enterprises and M/s. Dhariyal Chemicals and Shri Yogesh C. Dhariyal, Proprietor of M/s. Dhariyal Chemicals paid Rs. 15 lakhs on the spot. The case against the appellants apparently is that M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises is only one unit and the Rs. 15 lakhs deposited was towards the amount payable by M/s. Ganesh Enterprises. The appellants claim that the amo....