TaxTMI 
TaxTMI 
2005 (5) TMI 157
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....n investigations. The appellant was in dire need of the goods. Therefore, they sought provisional release of the goods without prejudice to the assessment made on the Bill of Entry. The appellant was required to file a new Bill of Entry. The department assigned the same number and date for this Bill of Entry. The appellant was required to indicate the items along with the classification as directed by the Department and value. On 30-8-1998 an amount of Rs. 52,51,132/- was paid in cash. Provisional bond for a value of Rs. 1,86,09,861/- was given and bank guarantee for Rs. 38.00 lakhs was given by Standard Chartered Bank, Chennai on behalf of M/s. WIPRO. The goods were then allowed to be cleared. The department issued a show cause notice dated 11-1-2000 on the basis of the second Bill of Entry. The differential duty demand was also made on the basis of the second Bill of Entry. The differential duty of Rs. 73,94,052/- was demanded under proviso to sub-Section (1) to Section 28 of the Customs Act, 1962 proposing to re-assess the goods under CTH 85.70. (ii) The departmental contentions raised in the show cause notice are as follows : (a) The value of the goods declared is not the c....
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....e assessee. Succeeding Asstt. Collector cannot call it in question and issue fresh show cause notice. 2002 (145) E.L.T. 529 (T) - SMZS Chemicals v. CCE - Order signed by the adjudicating officer and attested by Suptd. But not communicated to assessee, a final order in terms of law, even if audit approval was awaited. Such an order cannot be altered by the successive Asstt. Collector by a fresh order. 1998 (97) E.L.T. 211 (S.C.) - Escorts Ltd. v. UOI 2001 (130) E.L.T. 54 (T - LB - 5 Member Bench) - CC v. Arvind Export (P) Ltd. 1986 (26) E.L.T. 873 (T) - Ajay Exports v. CC, Madras 1993 (67) E.L.T. 710 (T) - Medimpex India v. CC 2002 (148) E.L.T. 364 (T) - Hitaishi Fine Kraft Inds. v. CC (c) The Commissioner held that the imported goods are two systems of Brite VSD Debit Platform. It is not the case of the department that there were more goods/items than what was declared by the appellants in the Bill of Entry. Hence the quantity of goods imported was exactly as declared by the appellants in the Bill of Entry. When all the items imported have been declared fully, it is irrelevant whether the goods form one system or two systems. As regards the value of the goods imported....
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....ion is payable only when the goods are directly purchased by the customer. In this case goods were imported by WIPRO and hence no commission is payable. No such commission was actually paid. No material was brought on record by the department to show that such commission was actually paid to WIPRO. (g) The next issue considered by the adjudicating authority was whether the price of software has been inflated and the hardware under-invoiced. No evidence was brought on record to prove the department's case that software prices were inflated. Merely by comparing the quotation given to RPG in May 1997, more than one year before the import, it is sought to be contended that the hardware price is under-invoiced. The learned Commissioner proceeds on the basis that software was not put to use till 1-1-1999. The fact admitted by the department is that software is already loaded on hardware. Hence RPG need not have to use the software in the CD, as it only the licenced software already loaded. The contention of the department that the value of software is included in the hardware and it is the hardware which is liable to duty is contrary to the judgment of the Hon'ble Supreme Court....
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....ough the adjudication order and also the various documents, the JCDR urged that the appellants had actually placed orders for two systems. The invoice never indicated the value. It is only the packing list, which contains the value of the goods. It is very unusual that the value is indicated in the packing list. The Commissioner has clearly brought out in his order that the appellant had imported two systems but declared the value of only one system. Thus it is a clear case of mis-declaration. (ii) The items imported are to be supplied to RPG who are cellular operators. The pre-paid system imported is to be used in conjunction with the cellular telephony system of M/s. RPG. Therefore the imported goods are only telephony system and the findings of the adjudicating authority on this are correct. (iii) Normally computer software is not liable to customs duty, while hardware is chargeable to duty. The modus operandi of importers is to inflate the value of software so that they can pay less duty on the hardware. The appellants also have adopted this method for evasion of duty. She pointed out that in the instant case, the value of software is much more than the hardware. (iv) She....
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....he same number and date has been given to the fresh Bill of Entry is also very disturbing. The appellant's contention that the assessment done on the Bill of Entry filed on 1-6-1998 is final and no demand can survive until and unless the assessment order is reviewed by the department is correct. The Honourable Apex Court in the case of Priya Blue Industries Ltd. v. CC, (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) have held that "Refund claim contrary to assessment order not maintainable without order of assessment having been modified in Appeal or reviewed under Section 28 of Customs Act, 1962." On the same lines, Revenue also cannot demand duty without order of assessment having been modified in Appeal or reviewed under Section 28 of the Customs Act, 1962. Even the other case laws cited by the learned Counsel are relevant. Even on this ground alone, the Order-in-Original is liable to be set aside. However, we shall go into the other issues also. The adjudicating authority held that the impugned goods are classifiable under 8517.00. The reasoning adopted by him is as follows : "The pre-paid system, although, has no independent identity by itself, works in conjunction....