TaxTMI 
TaxTMI 
2007 (11) TMI 100
X X X X Extracts X X X X
X X X X Extracts X X X X
.... correct valuation of these items, which have been imported from M/s. LGE, Korea. The appellants claimed that 70% of the value of the equipment imported represents the Hardware portion and 30% represents the Software. The IT software is not liable for duty. The unit price of the equipment is US$ 93.50 for certain equipment and US$ 95,00 for another set of instruments. The case of the Revenue is that the duty is payable on the entire value of each equipment imported. The split up of the value of the equipment at 70% value hardware and 30% of the value software is only artificial and there is no basis for holding the value in that arbitrary fashion as claimed by the appellant. Therefore, after a detailed investigation, proceedings were initia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-laws to hold that no interest or penalty can be demanded when the duty is paid before the issue of Show Cause Notice; (i) Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam - 2003 (161) E.L.T. 285 (T) = 2003 (54) R.L.T. 317(T) (ii) CCE, Visakhapatnam v. Rashtriya Ispat Nigam Ltd. - 2004 (163) E.L.T. A53 (S.C.) (iii) CCE, Delhi-III v. Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466 (T LB) = 2004 (62) R.L.T. 709(CESTAT-LB) (iv) CCE, Mangalore v. Shree Krishna Pipe Industries - 2004 (165) E.L.T. 508 (Kar.) = 2004 (61) R.L.T. 17(Kar.). Further, he relied on the following decisions to hold that the cost of software is not includible in the assessable value of the hardware, whether such software is embedded in the hardware or other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oftware; • The so-called software shipped separately by means of a CD is not technically required in as much as the TEC have confirmed that no such separate CD was supplied when the goods were presented to them for validation; • The software is already embedded in the telephones as imported; • The so-called software is not a separately tradeable commodity and no such evidence in this regard about its being a separately traded commodity has been produced. • The so-called software does not carry any value or price and whatever be the cost of such software, is already included in the integral price of the IFWT; • It is not possible in the course of international trade to purchase the so-called hardware portion separate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cision of the Hon'ble Supreme Court in the case of Commissioner v. Acer India Ltd., which has already been cited by the learned Advocate. In the Bhagyanagar case also, similar equipment were imported and the value of the equipment imported was split up as 68 US$ for the telephone and 29 US$ for the CD-ROMs supplied. But, in the present case, the investigation has revealed that the foreign suppliers were very reluctant to split up the value at 70% and 30% and it is only at the instance of the appellants they had resorted to the splitting up. Such investigation does not appear to have been carried out in respect of Bhagyanagar case. This is also very clear from the letter submitted by M/s. I.T.I Ltd. We are reproducing the above letter dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... LGE, Korea from 13-2-2004 in all the Bus of Entry filed till date. It is therefore, requested that the differential duty in respect of the value representing Software together with other Statutory levies may please be informed to us so as to enable us to make the payment at the earliest. Since the matter is intended to be settled by payment of all the statutory levies, we hereby give our consent for waiver of issue of Show Cause. Notice and also we do not intend to be heard in person. We request you to kindly take a lenient view in the matter and treat the matter is closed. We have to clarify that we are withdrawing our claim for a separate value for the Software. However, we beg your permission to reserve our right for our claim ....