Customs, Excise and Gold Tribunal - Delhi
Onward Novell (India) Ltd. vs Commr. Of Cus. (Airport) on 24 July, 2002
Equivalent citations: 2003(151)ELT709(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal filed by M/s. Onward Novell Software (India) Ltd. the issue involved is whether the Manuals imported by them are to be assessed along with Softwares imported by them.
2. Shri Sandeep Sehgal, Regional Sales Manager of the Appellants, submitted that the Appellants are a joint venture company with the object to make available the latest Novell Software products to the organizations in India; that they have been duplicating Novell products in India under the licence from Novell Inc.; that, however, some of the products are being imported by them from Novell, U.S.A.; that software was being duplicated in India and the manuals of these duplicated software are being imported as they could not get the quality printing of the manuals in India. He, further, submitted that the software products cleared and the manuals under each Bill of Entry have nothing in common since the manuals imported were of a different product and software product that were imported had nothing to do with the manuals imported. He emphasized that manuals of NETWARE 3.1 cleared together under the same Bill of Entry with the Software Netware SFT 3.11 are distinct and are unrelated to each other. The learned Regional Sales Manager also mentioned that the manuals are in the form of printed books and are only for reference/guides to enable the users to understand the application of software and as such are not chargeable to any customs duty; that these manuals are subsequently reprinted in India; that these manuals have nothing to do with the software items; that when two unrelated items are cleared under one Bill of Entry the import could not be called composite; that the Bill of Entry clearly shows separate values in each of the case involved, and therefore, the findings in the impugned Order that it was not possible to separate the value is not correct.
3. Countering the arguments Shri M.P. Singh, learned D.R., submitted that in one of the Bills of Entry the software imported was NETWARE SFT 3.11 and the Manuals were also NETWARE 3.11; that thus it is apparent that the Manuals were only meant for the software and therefore, in term of Section 19 of the Customs Act duty has to be charged on the set of articles.
4. We have considered the submissions of both the sides. Provisions of Section 19 of the Customs Act are attracted where the goods consists of a set of articles. Simply by importing of two or more items together and by presenting one Bill of Entry it cannot be claimed that a set of articles have been imported unless and until the goods imported make a set. Both the lower authorities have applied the provisions of Section 19 on the ground that both softwares on Diskettes and Manuals are termed as Software in the international market being software on a media and software in printed form. However, we observe that no basis for giving such a finding has been mentioned by either of them in both the orders. There is neither any reference to any technical aspect nor any authority according to which both software on Diskettes and Manuals can be termed as software in the international market. A perusal of Bill of Entry involved reveals that in respect of Bill of Entry No. 003225 and 010389, the software imported and manuals imported were different and their values have also been shown separately. In view of this it cannot be claimed by the Revenue that these were set of articles imported together. Provisions of Section 19 of the Customs Act will not apply. No differential duty is thus demandable in respect of these two bills of entry. In respect of remaining Bill of Entry No. 010637, dated 27-12-93 the software imported is NETWARE SFT 3.11 and the Manuals are also meant for Netware 3.11 only. The learned Representative of the Appellants, however, contended that the Manuals are meant for the original NETWARE 3.11 whereas software imported are different software as these are for SFT 3.11 which is used in the case of fault etc. No technical literature in support of this contention has been produced by the Appellants nor any technical data for rebutting the same has been adduced by the Revenue. This being a technical matter requires re-examination after obtaining the views of a technical expert. Accordingly the matter in respect of Bill of Entry No. 010637, dated 27-12-93 is remanded to the Adjudicating Authority for getting the opinion of a technical expert before re-adjudicating the matter. The appeal is disposed of in these terms.