2013 (10) TMI 626

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rticipated in the tender with the technical knowhow of M/s Tellabs International Inc. USA and its subsidiary M/s Tellabs Oy. Finland. The appellants imported the necessary equipment for executing the project by filing 30 different Bills of Entries on different dates during the period Oct 04 to Jun 06. The appellants separately filed 14 Bills of Entries during the same period on different dates for import of software for the equipment imported. For software imported, they availed exemption from customs duty under notification 21/2002-Cus (S. No. 157) and exemption from CVD on account of nil rate of duty in the Tariff till 01-03-2206. From 01-03-2006 they claimed exemption from CVD under notification 06/06-CE dated 01-03-2006 (S. No. 27). 3.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... order for admission of the appeals. 5. Arguing for the applicant, the Ld. Advocate submits that Telecom equipment and software are distinct commodities and are to be classified separately. He relies on the following decisions of the Hon. Apex Court to argue that value of software cannot form part of value of hardware: (i) PSI Data Ltd. Vs. CCE-1997 (89) ELT 3 SC. (ii) CCE Vs. Acer India Ltd - 2004 (166) ELT 21 (SC) (iii) Hewlett Packard India Sales Pvt. Ltd Vs.CC -2007 (215) ELT 484 (SC) 6. He submits that the software for telecom equipment is on identical footing as software for computers. The Ld. advocate relies on the following decisions and argue that telecom software is computer software only :- i. BPL Telecom Ltd. Vs CC Cochin ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e and demand duty thereon by classifying the equipment and software together as equipment. 11. The Ld. Advocate also submits that the demand is time barred since there is no mis-declaration in the bills of entry. 12. Based on the above arguments the Ld. Advocate prays that the case may be admitted without any pre-deposit. 13. Opposing the prayer the Ld. A. R. for Revenue submits that the case of the department is that the software was pre-loaded on the equipment (para 2.1.7 of SCN) when imported though they declared the goods to be just hardware. He further submits that the agreement was only for supply of equipment as a whole and not for hardware and software separately. The contract value has been split into value of hardware and softw....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... mis-declaration with intent to evade duty and therefore the extended period of five years is correctly invoked for demanding duty. Further for the canned software valued at about Rs.16,23,80,135/-. He submits that the exemption under Notf 06/06-CE was not available to such software. 13. He relies on the following judgments in support of his argument:- (i) Anjaleem Enterprises Pvt. Ltd. Vs CCE- 2006 (194) E.L.T. 129 (S.C.) (ii) Bharati Airtel Ltd and Ors Vs. CC Bangalore-2012-TIOL-746-CESTAT BANG. 14. We have considered arguments on both sides and also perused the records. 15. The facts of the case as brought out in the investigation prima facie supports the case of Revenue. The initial agreement do not indicate any separate supply of ....