TaxTMI 
TaxTMI 
2019 (9) TMI 289
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....sequent upon re-classification of 'Windows XPE Embedded software' under heading no. 8523 8020 of the First Schedule to Customs Tariff Act, 1975. The recovery of duties under section 28 of Customs Act, 1962 by denial of the exemption notification no. 12/2012-CE dated 17th March 2012 (at serial no. 266) was accompanied by order for imposition of penalties under section 112(a) or section 114A of the Customs Act, 1962 besides imposition of penalty under section 112(a) of Customs Act, 1962 on Shri Aditya Arun Kumar Bhuwania. Subsequently, by corrigendum dated 27th July 2018, confiscation of goods valued at Rs. 24,85,25,364/- was further amended to incorporate the refrainment from the consequence of confiscation while altering the penalty from Rs....
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....s, one disc with the same software would be sent. It would appear that the presence of the disc in the export consignment which was co-related with the relevant import consignment led to the conclusion that these very discs had been imported in the first instance in recorded form and hence not classifiable under heading 4907 of the First Schedule to Customs Tariff Act, 1975. Relying in large measure on the statement of Shri Aditya Bhuwania, Director of M/s Priya Limited, that confessed to import of software in individually recorded disc which were then re-exported, the original authority confirmed the demand. 3. The adjudicating authority has deduced his conclusions from the description of identical goods in the import documents filed from....
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....ith intellectual property rights. 6. It is submitted on behalf of Revenue that the consignment-to-consignment comparison of the imported goods with exported goods, of identical weight and identical description save for the inclusion of compact disc in the shipping bill, is a clear indicator that the discs were also being imported though the packages were claimed to be consisting only of licences or sticker licences. Moreover, the presumption for alteration of the heading and classification after the issue of notification no. 12/2012-CE dated 17th March 2012 was also concluded to be an indicator of incapability of description as customized software. According to Learned Counsel, it was physically impossible to contain the weight of as many ....
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....btedly inculpatory but not against the claim of having been retracted which, even if not done before the authority which recorded the statement, was, nevertheless, placed later before the adjudicating authority, there can be no doubt that the contents of the said statement is not acceptable without some corroboration. It is clear that the adjudicating authority, or the investigating officers, were not privy to the contents of either the export or import goods and rely heavily on the declarations in the documents and the purported confessional statement. Though doubts are sought to be cast on the retraction, it may not be easily discardable. The contents of the affidavit must, however, be established independently. The documents do not evinc....
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....ns were substantially the same, and which has held that '25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whethe....