2017 (9) TMI 1206

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....) on 23.06.2001 with SAP India Private Limited, which is a subsidiary of SAP AG Germany. SAP India raised an invoice dated 30.06.2006 for Rs. 2,14,75,660/- for the supply of SAP Software and its usage and such amount was paid by the appellant. The software was imported by the appellant from SAP Germany through DHL Courier. The parcel was customs cleared by DHL by filing courier bill of entry and was delivered to the appellant. In such bill of entry, only nominal value of Rs. 5987 was declared for import of SAP software, the custom duty was paid on this value by DHL and the same was recovered from the appellant. 2. Directorate of Revenue Intelligence investigated into the import of SAP software from SAP Germany through DHL Express India u....

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....unting to Rs. 2,14,75,660/- to SAP India should be considered as the actual value. Accordingly, show case notice dated 10.06.2011 was issued and ultimately resulted in the passing of the impugned order in which it was ordered as follows: i. The declared assessable value was rejected and differential custom duty of Rs. 17,89,155/- was demanded along with interest. ii. Penalties were imposed under Section 112 (a) on the appellant to the extent of Rs. 4, 47,289/-. iii. Penalty of Rs. 17,89,155/- was imposed on SAP India under Section 112 (A) of the Custom Act. Aggrieved by the impugned order, the present appeals have been filed. 4. With the above background we heard Shri Udit Jain, Advocate for the appellant as well as Shri Govi....

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....n 02.07.2006. iv. The duty involved on the software has already been paid by SAP India. Hence, the department cannot demand the same once again from the appellant which will amount to unjust enrichment to the department. 7. The Ld. DR supported the impugned order. He argued that the goods have, in fact been, imported by the appellant. The investigation undertaken by DRI has clearly proved that the correct value of the software is what has been paid by the appellant to SAP India. Further, he submitted that the appellant will not be in a position to make use of the importer's software unless he has paid the license fee to SAP Germany through SAP India. Ld. DR further relied upon the decision of the Tribunal in the case of Oracle India V....

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....ore, liable to the payment of customs duty. 9. The appellant has also raised the plea of limitation and claimed and the show case notice has been issued beyond the normal time limit and there is no evidence which implicates the appellants. We note from the record that the appellant has entered into EULA with SAP India and has paid the full value of Rs. 2,14,75,660/- to SAP India. There were also very much aware that such software was to be supplied by SAP Germany and is an import transaction. But for the detailed investigations carried out by DRI, the evasion of custom duty would have gone unnoticed. Hence, we find no merit in the argument that there was no willful suppression of facts by the appellant. 10. The appellant has also rais....