TaxTMI 
TaxTMI 
2005 (5) TMI 157
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....y the duty as the department was carrying out certain 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 f....
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....er of the Assistant Collector comes into operation as soon as it is signed and it is not even necessary to communicate the same to the 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 ....
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....ue. No such issue was raised in the show cause notice. Even in the order, despite the Commissioner's finding the demand does not include the alleged commission. Under the agreement between WIPRO and Brite, commission 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 licen....
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....as involved in some physical manner of dealing with the goods. No such finding has been recorded against him. - D. Akineedu Chowdry v. CC [2004 (178) E.L.T. 578 (T) = 2005 (67) RLT 78 (T)]. 5. The learned JCDR urged the following points : (i) Taking us through 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 mo....
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.... on the directions of the Department. We find that the procedure adopted by the departmental authorities is highly irregular. Once a Bill of Entry is filed and assessed to duty, the department cannot sweep it under a carpet and insist that the appellants file another Bill of Entry. The fact that the 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 l....
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....lephony systems, classifiable under CTH 8517.00. The items imported are for the functioning of prepaid system and not for telephony. Even without prepaid system, RPG Cellular system was functioning. Hence, the classification declared originally by the appellants appears to be correct. As regards the question of import of two systems, in our view, this issue is not very relevant. The goods, which have been imported are in accordance with the quantities mentioned in the packing list. The DRI officer visited UK for investigation. That investigation has not revealed that, the appellants paid an amount in excess of what has been declared by them in the Bill of Entry. Hence there are no grounds to reject the transaction value. We are also not in full agreement with the findings of the adjudicating authority that the appellants imported two systems. The most important question is whether the appellant paid money for two systems and declared the value of only one system. If that is the case of the department, they have not come out with any evidence even after investigating in UK. There is no proof that they had remitted more money than what was declared in the Bill of Entry for assessment....